It is clear that in the current crisis of the Rule of Law, that in recent years harvested a systematic weakening of the independence of the judiciary in Europe (and its sheer disappearance in Turkey, Hungary and Poland), what is endangered are the rights and freedoms of citizens. It is the very idea of Europe as a community based on the primacy and universality of fundamental rights, and on indivisible and universal values of human dignity, equality and solidarity as enshrined in the European rights Charters. It is the spiritual and moral heritage of the Union that we committed ourselves to recognize and protect for future generations.

The national judges, by taking seriously these Charters and keeping a “dialogue” with the European courts, have been key actors in the establishment of the system of values that represents the shared fabric of our community. The national judges, who are - and feel as - European judges, their associations, the High Councils for the Judiciary and their institutional networks are now in the frontline for the defense of the Rule of Law, the content of which has been made clear by the European Commission while designing the new mechanism to react to systemic crises in the member states since 2013. We have to reaffirm that the Rule of Law is not simply a system where laws are applied and enforced (so not only “black letter law”), but it encompasses as well the spirit of the law and fundamental rights, which are the ultimate foundation of all lawsFootnote 1.

It is clear that the real target of the strategy based on the openly declared objective to question the supremacy of EU law and the obligations stemming from the European Convention on Human Rights, that reached its apex with the judgments of the Polish constitutional court last October and November, is indeed the very existence of a supranational architecture for the protection of the Rule of Law, and of individual rights and freedoms.

MEDEL constantly stressed that the Public Prosecutor is a cornerstone of this architecture, and one of the keys to its effectiveness.

The years long reflection on its internal and external independence, accountability and transparency, across the variety of national contexts, made possible to reach - in opinions, recommendations and further soft law - a shared identity of Public Prosecution, based on common principles concerning its status and its relation with the judiciary: the independence of prosecution services is indeed both a precondition and a necessary corollary to the independence of the judiciary, as made clear by the “Rome Charter”, adopted by the CCPE in 2014Footnote 2.

This new identity is linked to the role of the Prosecutor in modern democracies and to the shift of paradigm represented by the increasingly supranational dimension of justice: from “guardian of legality” - a watchdog on the observance and enforcement of criminal law – to “justice organ” that acts on behalf of society and in the public interest to respect and protect human rights and freedoms as laid down, in particular, in the Convention for the protection of Human Rights and Fundamental Freedoms and in the case law of the European Court of Human Rights.Footnote 3

It is the Prosecutor who - not less than defense lawyers- can trigger in the judge, who sits in front of him or her, the «réflexe communautaire», that is a part of the machinery enabling a dialogue between the national courts and the Court of Justice of the EUFootnote 4. A dialogue now embracing the Strasbourg Court after the implementation of the advisory-opinion procedure set out in Protocol n.16 to the European Convention on Human Rights.

It should go without saying that the new identity of the Prosecutor as promoter and guarantor of rights and freedoms requires not only principles, but also a common institutional framework enabling it to perform its functions with impartiality and independence.

In the common legal space based on mutual trust between judicial systems, which implies a constant review - involving the national courts as well - of the actual capacity of all national systems to ensure the same level of protection of fundamental rights, the capacity of prosecution to act independently becomes one of the lenses through which one must read the radically new legal environment created by the common area of justice. All this appeared clearly in the case of the reference to the Court of Justice of the EU for the definition of the concept of judicial authority for the purpose of the European arrest warrant.

We can certainly repeat ourselves that the different models of prosecution are the outcome of different historical paths and of specific national cultural and social chemistries, but whatever the specific solution adopted at national level this must be compatible with the implementation of the Prosecutor’s functions that concern rights and freedoms and with its role in actively promoting fair and impartial judicial decisions.

The ongoing democratic backsliding is teaching us all this the hard way. The institutional arrangement of prosecution is aggressively and strategically exploited to modify institutional balances to the advantage of the executive power, providing it with a firm grip on the machinery of justice and on the exercise of core judicial functions.

Poland provides us once again the most striking example: the 2016 reform unified the role of Minister of Justice and that of General Prosecutor, thus merging in the same person increased powers over Court presidents, and increased powers of inquiry and of direct intervention in specific cases pending in the jurisdictions. This concentration of power encompassed the removal of any form of internal independence for individual prosecutors, who can be assigned to lower functions or different offices, subject to arbitrary disciplinary and criminal proceedings. Together with increased external prerogatives in the maintenance of law and order, all this deeply impacted on the separation of powers and, thus, on democracy.

But in other contexts as well, where and when the Rule of Law proves unstable, it is the structure of prosecution that easily becomes the key to a covert transfer of prerogatives to the executive branch or to pressures on the judges. Let’s just mention the remarks of the Venice Commission, the decisions of ECtHR and the reports of the European Commission (issued in the context of the Cooperation and Verification Mechanism) on the appointment and dismissal of prosecutors in Romania, and on the deficiencies of the structure and role of Prosecution in Bulgaria, that appeared as functional to the merging rather than to the separation of powers, with unreasonable broad prerogatives and lack of accountability, in a context of huge pressure on judges.

Any institutional arrangement must be assessed in the light of Rule of Law principles according to article 2 of the Treaty on European Union and cannot become a tool to put the courts under political control. This has been recently recalled by the Grand Chamber of the Court of Justice of the EU in the case of the specialized section of the Prosecutor Office for offences committed by judges and prosecutors introduced in Romania: it is clearly a general standard which perfectly fits to what happened in Poland with the Internal Affairs Department of the state prosecution service that launched actions against judges as Igor Tuleya, Beata Morawiec and many others who suffered serious consequences after taking decisions disliked by the leading political party.

An independent status for prosecutors is a fundamental requirement of the Rule of Law and a fundamental instrument of the independence of jurisdiction: MEDEL clearly stated these principles since the 90’s, in the Palermo and Naples declarations and recently recalled them in the Florence declaration of 19 September 2020Footnote 5.

These principles permeated a number of European documents dealing – significantly - with the independence of judges, as the Magna CartaFootnote 6 and the report prepared jointly in 2016 by the Bureau of CCJE and the Bureau of CCPE, stating that “the independence of prosecutors is a further safeguard in maintaining the independence of judges, it is crucial in a democratic society and an essential condition for the independence of the entire justice system”Footnote 7.

MEDEL constantly stressed the need for a parallel legal framework for judges and prosecutors where the latter can rely on a status fully complying with Rule of Law principles, subject to continuous monitoring by EU institutions on the respect of European common standards ensuring, also through autonomous self-government institutions, the impartial and independent exercise of prosecutorial functions.

The establishment of the European Public Prosecutor’s Office– that MEDEL always supported- should be considered as a milestone in this direction and represents a major step forward towards the introduction of a renewed model of public prosecutor, well aligned to the magnitude of the tasks it has to perform in order to ensure an effective and impartial guarantee of rights and liberties, the control of legality and the promotion of the principle of equality of all citizens before the lawFootnote 8.

The kick-off of EPPO’s activity will necessarily raise a line of questions concerning the protection of the fundamental rights of individuals under investigation and prosecution and, once again, the role of national courts and the EU Court of Justice in developing the EPPO legal framework in a Rule of Law compliant manner will be crucialFootnote 9.

Independence in the form of external independence towards other European institutions, agencies, member states, internal autonomy of its members, and accountability are the core features of the new body.

The EPPO Regulation lays down specific rules to ensure such independence, in line with the case law of the European Court of Human Rights, and the internal autonomy: EPPO operates as an indivisible Union body, a single entity albeit strongly interconnected to the national judicial systems through the European Delegated Prosecutors, who are - according to the Regulation- “an integral part of the EPPO”, acting exclusively on its behalf and in its name on the territory of their respective Member State, with “a functionally and legally independent status which is different from any status under national law” (recital 32).

The great challenge represented by the establishment of the EPPO requires not only the harmonization of national legislations: it requires also the integration of structures and systems and potentially uniform legal rules – even of constitutional rank - concerning the independence and accountability of prosecutors in the different national systems.

It is high time to implement a common European Independent Statute of the whole judiciary, something that MEDEL advocates since 1993.