1 Grounds

The title of this session “The position of the Public Prosecutor’s Office/the need for European rules on internal/external independence” is inseparable from one of the most curious paradoxes of the Public Prosecutor’s Office within Europe:

  • On the one hand, it remains the most national of the formal instances of control, due to the enormous diversity among Member States (MS);

  • On the other, it has been the protagonist in some shaping or harmonisation projects within the framework of the European Union (EU)Footnote 1.

This intervention will not focus on the principles developed in the framework of soft law expressed in recommendations of the Committee of Ministers of the Council of EuropeFootnote 2 and in opinions of the Consultative Council of European Prosecutors. Nor will it address the political mechanisms available to EU bodies that may have repercussions on national prosecutors, under Articles 2 and 7 of the Treaty on European Union.

Our centre of attention will therefore the possibility of EU rules, in a functional sense (as opposed to axiological guidelines), namely binding prescriptions of the Court of Justice (ECJ) for Member States concerning the Public Prosecutor’s Office as an actor in criminal.

This is an area in which two levels must be distinguished:

  • On the one hand, possible general institutional rules;

  • On the other hand, guarantees arising from the exercise of specific functions and/or obligations of Member States—for example on certain powers regulated by European rules (such as the issuing of European arrest warrants) or obligations of effectiveness in the prosecution of certain offences such as those affecting the EU’s financial interests, the suppression of money laundering and the financing of terrorism.

Guarantees for certain functional areas within the Public Prosecution Service (the second level referred to above) should not be confused with supposed general statutory European standards on the duties of Public Prosecutors in Member States (the first level referred to above). In many cases, the assessment of national rules on the Public Prosecutor’s Office by international courts only arises in the event that particular responsibilities are assumed by Public Prosecutors at the domestic level and are not covered in terms of national law by the reservation of jurisdiction (in which case supranational requirements on guarantees for Public Prosecutors as a condition for the exercise of these functions would no longer be relevant).

2 Historical Mark of the National Models of Criminal Procedure and Configuration of the Public Prosecutor’s Office

The development during the 19th century in some European States of a Public Prosecutor’s Office as a bureaucratic institution extended to the entire national territory revealed in continental Europe an instrument with the potential to disembody the judicial system, through the functional distribution, but also an institution that in the service of the purposes and interests of the dominant political powers could condition the independence of the judicial system.

These constructions are inseparable from the reformist movements of criminal procedures that have emerged in continental Europe since the end of the 18th century, which, despite being influenced by some representations of the English system, have come to take shape in different schemes of reaction to the judicial order of the Ancien Régime, with some of the most dramatic disruptions focusing on the field of evidence, but also on institutional components such as the changes in criminal juries and schemes on the exercise of criminal prosecutionFootnote 3.

In the 19th century, two opposing schools developed, the French and the Italian, on the relationship between the Public Prosecutor’s Office and the executive and the exercise of criminal prosecution, which influenced the organisational and procedural configuration in several other countries, namely Spain and PortugalFootnote 4. There is a diversity of institutional designs, functional scopes and constitutional frameworks for national Public Prosecutors’ Offices, which, if the assessment is extended to all the states that are currently members of the EU, comprises multiple distinct schemes, marked by different historical roots (for example, the mark of the German criminal procedure reform of 1877), with hybrid and eclectic solutions being found in several states, in terms of organisational design, the relationship with the executive, the police and the courts, as well as variants related to models and guarantees of other administrative apparatus of the specific states.

The comparative study of the institution of the Public Prosecutor’s Office must include a reading of its organic and procedural components that is attentive to its historical dimensions, and also depends on instruments for analysing the systems of administration of justice and the cultures themselves (legal and operational) which cannot be limited to a descriptive juxtaposition of legal systems, but must include considerations on ideal models intended to serve as a grid for classification, analysis, and understanding of concrete legal systemsFootnote 5.

3 Case Law of the Court of Justice on Public Prosecutor’s Office and Judicial Authority Concepts

The case law of the ECtHR and the ECJ in their consideration of the institutional guarantees of national Public Prosecutor’s Offices has focused mainly on the second of the two levels we initially mentioned: certain competences that in some legal systems are part of the judge’s reserve and in others are (or may be) attributed to the public prosecutor, especially when the legal texts applied by these courts refer to a specific concept of judicial authority (JA).

Article 5(3) of the European Convention on Human Rights (ECHR), in relation to the legality of detentions, refers to a judge or other officer authorised by law to exercise judicial power, which summoned the Strasbourg Court, in particular, to examine the guarantees of the prosecutors who make up certain national Public Prosecutors’ Offices.

The case of Moulin v. France judgment, of 23 November 2010, addressed the guarantees of autonomy of the decision-making of other officers authorised by law to exercise judicial power in addition to the principle of the unity of the judiciary in force in France, according to which magistrates, after entering a single national competition, may exercise successive judicial and Public Prosecutor’s Office functions throughout their career.

The ECtHR found a violation of Article 5/3 of the ECHR due to the combination of three decisive factors: the detainee was not brought before a judge until more than five days after her detention, five days is an excessive period of time for presentation to a judicial authority subsumed under the rule of the Convention and the French Public Prosecutor’s Office to whom the defendant was presented during this time (and who decided to extend the detention) did not meet the requirements of a JA for this purpose, as he lacked full independence from the executive.

At the level of European Union law, the concept of JA has been particularly developed by Article 6 of the Framework Decision (FD) on the European arrest warrant (EAW) and the guarantees that the Public Prosecutor’s Office must meet in order to issue EAWs under that statuteFootnote 6.

Since it was initially uncontested that the concept of an JA could go beyond that of a judge it was also clear that the question would require a case law densification by the ECJ.

Three judgmentsFootnote 7 were delivered on 10 November 2016, with the Court, after highlighting that the concept of JA issuing a EAW is proper under EU law, concluding that it was not fulfilled by a Swedish police authority or the Lithuanian ministry of justice, but would already be fulfilled in the case of a Hungarian prosecutor.

In these judgments, the ECJ rejected the more restrictive line taken by Advocate General Sánchez-Bordona, who argued that the competence to issue EAW always included the reserve of the judge. Idea reiterated by the same Advocate General, in the sense that the “JA of issuing” EAW “does not cover the institution of the Public Prosecutor’s Office” in new cases on national Public Prosecutor’s Offices that were object of two Judgments issued on 27-5-2019Footnote 8.

Judgments of the Grand Chamber of the ECJ in which the Lithuanian Prosecutor General was considered to be a JA for the purpose of issuing EAW, as opposed to two district prosecutor’s offices of two Federal Republic of Germany states (Länder) because in those cases the respective prosecutors lacked independence from the executive.

However, the 27-5-2019 Judgment concerning Lithuania deepened the requirement in this regard, through the analytical decomposition between the EAW decision and a necessary and precedent national arrest warrant. While admitting that the issuing of the EAW could be undertaken by a public prosecutor of the Public Prosecutor’s Offices who meets the requirements to qualify as a JA for the purposes of the FD, the Court stressed that when the EAW is issued by the Public Prosecutor’s Office the previous national detention order must be determined or homologated by a judgeFootnote 9.

Later judgements of the ECJ confirmed the deflation of the importance of the previous discussion on the concept of JA for the purpose of issuing EAW, since, according to the current case law of the ECJ, when the JA is a prosecutor, it is always required that at the national level the detention has been decided or homologated by a judgeFootnote 10.

The problem of the exclusive competence of the judge as opposed to the Public Prosecutor’s Office as the JA was also relevant in the most recent case law expressed in Judgment of 2-3-2021Footnote 11 on Directive 2002/58/EC on privacy and electronic communications, in which the ECJ concluded that “Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation that confers upon the public prosecutor’s office, whose task is to direct the criminal pre-trial procedure and to bring, where appropriate, the public prosecution in subsequent proceedings, the power to authorise access of a public authority to traffic and location data for the purposes of a criminal investigation”. A case concerning Estonia with repercussions on legislation in other States, on the amendment of Italian legislation by means of Statutory Instrument No 132 of 30-9-2021.

4 Judicial Authority and the Autonomy of National Legal Categories with Respect to European Functional Concepts

According to Benjamin Cardozo’s impressive formula a “fertile source of perversion in constitutional theory is the tyranny of labels”Footnote 12. Taking this into account, the jurisprudential constructions on the requirements that the Public Prosecutor’s Office must fulfil for the purposes of certain European rules with competencies reserved for the JA should not contaminate national concepts developed in constitutional and legal frameworks of concrete sovereign States.

The national concepts of the Judicial Authority may include a set of guarantees that are specific to the particular legal system and that, for example, are fundamental to allow the national Public Prosecutor’s Office to assume certain criminal procedural powers in the light of the particular constitutional order of the state.

Therefore, the autonomy of the concepts of JA in the ECHR and in EU law in relation to national rights also includes an autonomy of the national legal categories, which cannot be arbitrarily reduced to a lowest common denominator and which, in the light of the specific legal systems, may include stronger requirements which are completely autonomous of the issues considered by the Court of Justice.

Autonomy of concepts that can be illustrated by the Portuguese case, in which the problem of the qualification and effectiveness of the guarantees of the Public Prosecutor’s Office as a JA is shaped by a particular constitutional history that goes beyond the limits of the detaining powers of the state apparatus, involving issues such as the pretension of effective mechanisms against the operability of administrative privileges within the scope of criminal justice.

This is an area in which it is important to bear in mind a ballast that goes beyond the regime that ended in 1974, in particular a historically founded distrust of the abuses of power on the basis of the acceptance of exogenous controls and institutes such as popular action in criminal matters (with roots in the first half of the 19th century).

On the other hand, constitutional rules on the body of members of the Public Prosecution Office can be integrated into a structural reading on plurality and decision-making autonomy that, despite the Portuguese separation of the national entities of autonomous administration of judges and prosecutors, comprise connections with the Italian model of magistrates of the Public Prosecution Office. It is an inseparable product of constitutional rules on Criminal Procedure and the functions of the Public Prosecution Office in that universe.

5 The European Public Prosecutor’s Office for the Criminal Prosecution Affecting the Financial Interests of the European Union

The second element of the paradox pointed out at the beginning, the Public Prosecutor’s Office as the protagonist of some supranational projects within the framework of the EU, had as its central element the discussion that began a quarter of a century agoFootnote 13 when was approved a document for the creation of a Corpus Iuris with the objective to strengthening the criminal protection of the European Union’s financial interests which contained as an essential and innovative proposal the creation of a European Public Prosecutor’s OfficeFootnote 14.

A process with multiple vicissitudes (and different proposals over the years) which culminated in the emergence of another EU body based in Luxembourg, the European Public Prosecutor’s Office (EPPO), which began operating on 1-6-2021. The European Public Prosecutor’s Office is configured as a single entity with two levels: (1) a central one consisting of a European Public Prosecutor, the Permanent Chambers and the European Public Prosecutors, and (2) a decentralised one consisting of the European Delegated Prosecutors, located in the Member States that are part of the EU body but exercise functions in the Member States and before national courts.

Thus, the creation of the EPPO implies the restriction of the powers of the Public Prosecutor’s Offices of the participating Member States in a matter that falls within the competence of national courts when applying national law conformed to EU law (which takes precedence over national law).

This is an EU body with a very limited functional scope, relating to the investigation, prosecution and upholding of a range of offences “affecting the financial interests of the Union”, covering only 22 EU countries, as Denmark, Ireland, Hungary, Poland and Sweden are not participating, at least for the time being.

Maturation over more than 20 years (with advances and retreats) has culminated in the consecration of an interesting institutional model of the EPPO and illustrates the unfoundedness of the thesis, which some still advocate, on the necessary association between a unified and indivisible Public Prosecutor’s Office and monocratic solutionsFootnote 15. In fact, in the EPPO’s architecture the guarantees of external independence in the exercise of criminal proceedings are combined with transparent mechanisms for defining the specific persons subjectively responsible for the specific decisions of the Public Prosecutor’s Office as regards the investigation and the exercise of criminal proceedings.

The issuing of orders and instructions is subject to legally regulated procedures on the distribution of competences, defining forms of intervention by the central level that safeguard the evaluative autonomy of the prosecutor (and remedies, such as the possibility of recalling the procedure and other control mechanisms that mitigate the risks of atomisation). In the EPPO model, hierarchical interventions produced in a singular and hidden manner are prohibited, and there are guarantees of independence or internal autonomy of the prosecutors, complemented by broad and accountable control mechanisms of the sub-bodies (and respective members) based in Luxembourg. An organisational and procedural scheme in which the recognition of the evaluative responsibility of all procedures, including the delegated ones, comprised a healthy balance between the protection of unity and of dissent, making the bodies (individual and collegial) of the various levels or instances responsible for their decisions (even if tacit).

However, there are factors which may lead to reservations about the legitimacy of the EPPO, first and foremost in the appointment of European Public Prosecutors, through a procedure with great scope for decisive and discretionary action by the national executive powersFootnote 16 and the fact that it is a heavy structure for a very limited operational scope. This means that intense scrutiny must continue as to whether it complies with the principle of proportionality.

It is also important not to forget that when entities are created within the EU apparatus, there is a risk of excessive commitment to self-justification of their hypothetical usefulness and coexistence with other European bodies (an effort that is often marked by the interests of the respective bureaucracies), which has led to drifts that justifiably arouse distrust among tax payers on behalf of whom these bodies act, not always with the most appropriate control within the EU framework.

While it is true that a new-born child has no negative ballast, the EPPO is presented with a framework tinged with some bad examples. It should be noted that, an entity close to EPPO such as the European Court of Auditors (ECA) of the EU (a strong driving force behind the EPPO and has some relevant functions regarding the new institutionFootnote 17). The ECA whose (non)usefulness has long been questioned (in view of the reports it produces and the audits it does not carry out), and serious pathologies were revealed between the lines of the recent ECJ judgement of 30-9-2021 of the Pintxen caseFootnote 18, particularly in terms of omissions, deficits in internal controls, public service ethics and peculiar institutional culture, which would remain hidden if it had not been for a complaint and an OLAF investigation.

6 Public Prosecutor’s Office, Court of Justice, Jurisdiction and Disputes

At the European level, the jurisprudential assessment of the institutional guarantees of the Public Prosecutor’s Office has been fundamentally related to a European standard of minimum requirements for exercising the competences reserved for the JA in European normative instruments.

This, in turn, may have a variable impact on national systems depending on the internal distribution between formal instances of control, in particular judges, Public Prosecutor’s Office and police.

That is, if a particular national Public Prosecutor’s Office exercises powers that are reserved by a particular EU legislative instrument to entities that can be classified as a JA, and the ECJ concludes that this Public Prosecutor’s Office does not meet the requirements to act as a JA for that purpose, a challenge arises that must be solved by the Member State.

The Member State may, in abstract terms, overcome the problem identified by the ECJ judgment through alternative routes, to be decided within the framework of national sovereignty, namely: (a) conferring jurisdiction on a pre-existing judicial body that meets these requirements; (b) reforming the Public Prosecutor’s Office to make it compatible with the requirements indicated in ECJ case law; (c) creating a new body (even if this means making it independent from a body that is part of another institution), giving it a status of guarantees that is compatible with the concept of an EU JA and conferring on it the jurisdiction over which the problem has arisenFootnote 19.

The European Public Prosecutor’s Office for the investigation, prosecution and upholding before national courts of certain offences against the EU’s financial interests is an EU body whose actions are directly linked to EU normative instruments, including the Charter of Fundamental Rights, the interpretation of which falls within the jurisdiction of the ECJ. Its creation was also a way of restricting the competences of Member States’ Public Prosecutor’s Offices in cases involving EU law that are judged by national courts.

National Public Prosecutors’ Offices are very diverse institutions, with different constitutional statutes, functions, competences and operational frameworks in the various criminal procedural regimes, which has repercussions in a plurality of systems on external and internal independence.

In any case, despite the multifarious nature of the Public Prosecutors’ Offices in the various Member States, there is one point on which there is consensus: in general, they are not judicial bodies and, consequently, they cannot approach the ECJ to ask it to clarify a point of interpretation of EU law or to review the legality of an act of EU law—they do not fall within the concept of a judicial body for the purposes of Article 19(1) (second paragraph) and (3)(b) of the TEU.

As a result, national Public Prosecutors’ Offices lack an element that has been central to the case-law of the ECJ, which, since the ASJP judgment of 27 February 2018 (C-64/16), has considered itself competent to rule on certain judicial reforms and even on occasional acts affecting national judges and courtsFootnote 20.

In addition to lacking the core element, according to the most recent case law of the Court of Justice, to be able to assess the violation of statutory guarantees of a professional judiciary, in terms of the balance between the constitutional apparatus of the EU and the Member States, an extension of the prescriptive intervention of EU bodies to judge the institutional designs of national Public Prosecutors Offices would always seem to be problematic and undesirable.

National Public Prosecutors Office’s fit into their respective criminal procedural models and even in cases where they are not expressly mentioned in the constitutional text, they are institutions that form part of the very fabric of sovereign states that cannot and should not be judged by the ECJ as an EU body, when they do not relate to specific matters concerning the application of EU law (as we have seen happen with Article 6/1 of the FD on EAW or Article 15/1 of Directive 2002/58/EC on privacy and electronic communications).

On the other hand, the impetus for generic assertions to conform and sanction deviant members by imposing minimum or maximum common denominators often includes simplistic approaches that ignore the complexity of legal systems, their history and the respective checks and balances, which are not fully understood in abbreviated bureaucratic guidelines, but involve a multitude of elements and balances unattainable by the scores of hasty legal engineersFootnote 21.

Capturing the plurality of systems and models of sovereign states is significantly more complex in the supranational court of the EU than it is in the case-law of the Supreme and Constitutional Courts, which interpret and apply federal Constitutions that must be obeyed by the laws of the federal states, and in which the diversity of solutions and regimes form part of a common heritage at the conceptual level, particularly as reflected in the chapters on Fundamental Rights in the constitutional texts.

At this level, the ECJ has managed to maintain a line of relatively restrained decisions that are remarkably coherent when compared, for example, with the case-law of Strasbourg, as has been shown by the latter’s various fluctuations, particularly in the tense dialogue that the ECHR has maintained with the UK Supreme Court.

The ECJ has maintained some rhetorical caution in view of the imperative to keep the areas of case law pronouncement within the limits of the Treaties and the European Charter of Fundamental Rights, whose Article 51(1) emphasises that its addressees are the institutions and bodies of the Union, in compliance with the principle of subsidiarity, and that it only addresses Member States “when they are implementing Union law”.

However, even while respecting the principles of Member State sovereignty, the ECJ has revealed particular difficulties with core questions of evidence law and criminal procedure, which involve areas of law and philosophy other than those that have traditionally formed the nucleus of the work of the Luxembourg Court.

For example, in a recent preliminary ruling about the European investigative order in criminal matters, the Ivan Gavanozov II CaseFootnote 22 of 11-11-2021, was established by the ECJ a peculiar, original and unmotivated assertion on a right to judicial remedy against decisions concerning the hearing of witnessesFootnote 23.

Thus, on a matter that is significantly simpler than the one involved in capturing the wide-ranging variables that make up the functional and institutional profiles of the national Public Prosecutor’s Office, the ECJ defended, without elaborating on the grounds, a thesis that runs counter to the heritage of multiple procedural regimes outlined at the constitutional level on the duty of witnesses to cooperate with the State—it should be noted that the judgement refers to the general issue of being summoned for questioning by videoconference and not to possible incidents in questioning, such as exercise of the privilege against self-incrimination, invocation of professional secrecy, use of coercion, or punishment in reaction for (express or tacit) refusal to cooperate.

As long as this statement is not corrected by the body that issued it, it may be a disturbing factor revealing the risks of excessive expansionism of the judgments of the Luxembourg Court in the assessment of national criminal procedural regimes.

The Weiss Case of the Second Chamber of the Federal Constitutional Court of Germany (BVerfG) of 5 May 2020 directly confronts core aspects of the problem of the constitutional jurisdictions of Member States and the EU, comprising the express assumption of the BundesVerfassungsGericht’s understanding that the ECJ in a previous decision exceeded what was permitted under Article 19(1) (2§) TEU. Collision which, as several authors have pointed out for some years (including when results of Luxembourg and Karlsruhe decisions were, apparently, harmonised), is inseparable from axiological dimensions concerning the autonomy of law and jurisdiction in the face of functional political needs assumed by EU bodies.

Curiously, the ECJ could not resist a response to the BVerfG, only three days after the Weiss judgement, by means of a peculiar press release (no. 58/2020 of 8 May 2020) prompted by a judgement of a court of a sovereign state. A text whose apparent restraint does not disguise the political dimension of the forum chosen and, consequently, of the choice of three ECJ judgments (curiously, the above-mentioned Pintxen case by the ECJ itself did not lead to a press release). This is an unequivocal political problem, whose new stage is expressed in the infringement procedure opened by the Commission against Germany (about a year after the BVerfG judgment).

Thus, the problem relates to constitutional judicial authority and cannot be evaded by fragile euphemisms, such as judicial dialogue, when what is at stake is the power to have the last word in disputes relating to the constitutional law of states.

The differences between the two bodies go beyond their respective territorial scope, between the defence of a constitutional text and constructivism about a post-Westphalian eraFootnote 24, to the institutional profilesFootnote 25 and operating modelsFootnote 26 of the entities in conflict.

The evolution of the ECJ’s intervention towards direct impositions of a constitutional nature on sovereign legal orders required normative legitimation and an axiology with principles on accountability models for the judiciary in the assessment of difficult issues.

Plan in which the exercise of a binding prescriptive power for jurisdictional and democratically legitimated organs of the Member States is not compatible with an anodyne discourse, even if correct and synthetic, as if the decisions of the ECJ were the result of a strict mechanistic or axiomatic-deductive operation. This pathology is not diminished in the alternative and/or cumulative way, which is also revealed in some decisions of the ECJ, focused on the occasional censure of the circumstances of the case without binding to abstract parameters normatively founded.

When judging on the conformity of national legislation with the standards of EU law in the light of a constitutional matrix, it is important to bear in mind that in order to present itself as a jurisdictional activity with a motivation that is wholly or partly cognitive and normatively founded, procedural transparency is required (including in internal matters such as the designation of the rapporteur), as well as reasoning (even if competing or divergent) that is conceptually assumed by specific judges, because the legal judgement of a court should not be based on the political authority of the EU body. On the other hand, in the Schmittian conception, the exercise of the court’s political function as a Union body should be decision-taking without allowing internal loopholes, such as the expression of judges’ votesFootnote 27, a paradigm far removed from the idea of the judiciary present in the constitutions of several states, where the independence of each judge is a value in itself.

In a court that presents as a constitutional jurisdiction likely to impose itself on democratic parliaments on controversial issues, its dictates also constitute a problem of legitimation inseparable from the judges’ responsibility to express the authority of arguments and not just the authority of a monolithic institutional power.

At the ECJ, the silencing of deliberative voting and of the voices of its members (in the proper place, which is court decisions and not press releases, interviews or conferences), together with the unavoidable problem of legitimising the decisions of its members, haunts the expansionist superimposition of the ECJ in relation to the courts of the Member States.

I cannot help but recall the famous phrase, in 1936, of Charles Evans Hugues, then Presiding Judge of the US Supreme Court at a time of tumultuous tensions between that court and the state and federal legislative powers, in which another standard of jurisdictional responsibility is revealed: a dissenting vote “in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”Footnote 28.