Abstract
In October 2017 the Council Regulation establishing the European Public Prosecutor’s Office was adopted through enhanced cooperation. In its final version, the new Union body has lost many of the traits originally envisaged by the Commission in its 2013 Proposal. This contribution analyses the transformation of the EPPO system with regard to both its structure and investigation powers. Thereby, particular attention will be paid to cross-border investigations and to the applicable rules on evidence gathering and evidence admissibility. In order to assess the functionality of the future EPPO, parallels will be drawn to mutual recognition and, more specifically, the European Investigation Order. Along with the evaluation of the effectiveness of the EPPO’s powers, the protection of the principles of fair trial and equality of arms will be considered by taking account of the procedural safeguards granted to suspects and accused persons in proceedings of the EPPO, especially those with cross-border elements.
Silvia Allegrezza is Associate Professor University of Luxembourg. Anna Mosna is PhD candidate at the University of Luxembourg.
The present paper is the result of a joint discussion. However, Paragraphs 1, 3, 4 and 8 must be attributed to Silvia Allegrezza and Paragraphs 2, 5, 6 and 7 to Anna Mosna.
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Notes
- 1.
Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, COM(2013)534 final, of 17 July 2013.
- 2.
Council Regulation (EU) 1939/2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (“the EPPO”), of 12 October 2017.
- 3.
Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters, of 3 April 2014.
- 4.
Recchione (2014), p. 21.
- 5.
Delmas-Marty and Vervaele (2000), p. 40.
- 6.
- 7.
Delmas-Marty and Vervaele (2000), p. 311.
- 8.
Kuhl (2017), p. 137.
- 9.
- 10.
- 11.
“The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions”.
- 12.
Giuffrida (2017), p. 3.
- 13.
- 14.
Allegrezza (2013), pp. 5–7.
- 15.
The list contained in Article 26(1) EPPO Proposal mentioned the following measures: (a) search any premises, land, means of transport, private home, clothes and any other personal property or computer system; (b) obtain the production of any relevant object or document, or of stored computer data, including traffic data and banking account data, encrypted or decrypted, either in original or in some other specified form; (c) seal premises and means of transport and freezing of data, in order to preserve their integrity, to avoid the loss or contamination of evidence or to secure the possibility of confiscation; (d) freeze instrumentalities or proceeds of crime, including freezing of assets, if they are expected to be subject to confiscation by the trial court and there is reason to believe that the owner, possessor or controller will seek to frustrate the judgement ordering confiscation; (e) intercept telecommunications, including e-mails, to and from the suspected person, on any telecommunication connection that the suspected person is using; (f) undertake real-time surveillance of telecommunications by ordering instant transmission of telecommunications traffic data to locate the suspected person and to identify the persons who have been in contact with him at a specific moment in time; (g) monitor financial transactions, by ordering any financial or credit institution to inform the European Public Prosecutor’s Office in real time of any financial transaction carried out through any specific account held or controlled by the suspected person or any other accounts which are reasonably believed to be used in connection with the offence; (h) freeze future financial transactions, by ordering any financial or credit institution to refrain from carrying out any financial transaction involving any specified account or accounts held or controlled by the suspected person; (i) undertake surveillance measures in non-public places, by ordering the covert video and audio surveillance of non-public places, excluded video surveillance of private homes, and the recording of its results; (j) undertake covert investigations, by ordering an officer to act covertly or under a false identity; (k) summon suspected persons and witnesses, where there are reasonable grounds to believe that they might provide information useful to the investigation; (l) undertake identification measures, by ordering the taking of photos, visual recording of persons and the recording of a person’s biometric features; (m) seize objects which are needed as evidence; (n) access premises and take samples of goods; (o) inspect means of transport, where reasonable grounds exist to believe that goods related to the investigation are being transported; (p) undertake measures to track and control persons, in order to establish the whereabouts of a person; (q) track and trace any object by technical means, including controlled deliveries of goods and controlled financial transactions; (r) undertake targeted surveillance in public places of the suspected and third persons; (s) obtain access to national or European public registers and registers kept by private entities in a public interest; (t) question the suspected person and witnesses; (u) appoint experts, ex officio or at the request of the suspected person, where specialised knowledge is required.
- 16.
Article 26(4) EPPO Proposal stated that “Member States shall ensure that the investigative measures referred to in points (a)–(j) of paragraph 1 are subject to authorisation by the competent judicial authority of the Member State where they are to be carried out”.
- 17.
Article 11(3) EPPO Proposal.
- 18.
Allegrezza (2013), p. 7.
- 19.
- 20.
- 21.
On this issue, in relation to the final EPPO Regulation, see Mitsilegas and Giuffrida (2017), pp. 8–9 and 11.
- 22.
- 23.
In this regard, it suffices to note how the EPPO Proposal limited itself to reiterating, in its Article 32(1), the necessary “compliance with the rights of suspected persons enshrined in the Charter of Fundamental Rights of the European Union, including the right to a fair trial and the rights of defence” and to listing, in Article 32(2), the rights contemplated in the directives adopted as part of the Roadmap attached to the 2009 Stockholm Programme, such as the right to interpretation and translation, the right to information and access to case materials and the right of access to a lawyer and the right to communicate with and have third persons informed in case of detention (a–c); further the right to remain silent and the right to be presumed innocent (d); the right to legal aid (e); and the right to present evidence, appoint experts and hear witnesses (f).
- 24.
Allegrezza (2013), p. 8.
- 25.
Flore (2014), p. 789.
- 26.
A similar model was already hypothesized in the Tampere Conclusions, in which it was stated that evidence lawfully gathered by the authorities of one Member State should be admissible before the court of another Member State, after taking account of the standards that apply there: European Council of 15–16 October 1999, Conclusions of the Presidency, SN 200/1/99 REV 1, point 36; see also Gless (2009), p. 159; Helenius (2015), pp. 180, 190–191; Allegrezza (2010), p. 569.
- 27.
See also Recital n. 32 EPPO Proposal.
- 28.
- 29.
The disposition of the EPPO Proposal’s Article 30(2) on the integrity of the power of national courts to freely assess the evidence presented by the EPPO is rather curious. Not only does it state the obvious, since the principle of free evaluation of evidence and, hence, the principle of the judge’s intime conviction belong to the core principles in the European traditions of criminal procedure, but it also goes further than what is envisaged by Article 86 TFEU. Article 86(3) TFEU refers only to “the rules of procedure […] governing the admissibility of evidence”, while the content of the EPPO Regulation also incorporates rules on the activity of the judge “[o]nce the evidence is admitted”.
- 30.
European Commission of Human Rights, 11 October 1988, Wischnewski v. Federal Republic of Germany, Application No. 12505/86,: “Article 6, para. 1 (Art. 6-1) of the Convention […] does not lay down rules as to the evidence as such, and, in particular, as to its admissibility, these questions being essentially dependent on domestic legislation”; see also ECtHR, 12 July 1988, Schenk v. Switzerland, Application No. 10862/84, §§ 46–49; 9 June 1998, Texeira de Castro v. Portugal, Application No. 25829/94, § 34; 1 March 2007, Heglas v. Czech Republic, Application No. 5935/02, § 84; 1 June 2010, Gäfgen v. Germany, Application No. 22978/05, § 162.
- 31.
Helenius (2015), p. 224.
- 32.
ECtHR, Gäfgen v. Germany (footnote 31) § 162.
- 33.
- 34.
Bachmaier Winter (2013), p. 130; European Commission of Human Rights, Wischnewski v. Federal Republic of Germany (footnote 31): “none of the Convention’s provisions expressly requires that evidence obtained illegally under national law should not be admitted. The Convention organs therefore cannot exclude as a matter of principle and in the abstract that evidence obtained unlawfully under domestic law may be admissible, but must ascertain in the specific case whether, having regard to its particular circumstances of the case in question, the trail – taken as a whole – was fair within the meaning of Art. 6, para. 1 (Art. 6-1) of the Convention”; ECtHR, Schenk v. Switzerland (footnote 31) §§ 46-49; 12 May 2000, Khan v. the United Kingdom, Application No. 35394/97, § 34; 25 September 2001, P.G. and J.H. v. the United Kingdom, Application No. 44787/98, § 76; 5 November 2002, Allan v. the United Kingdom, Application No. 48539/99, § 42; Gäfgen v. Germany (footnote 31) § 163.
- 35.
Voena (2014), p. 289.
- 36.
- 37.
Mitsilegas and Giuffrida (2018), p. 75.
- 38.
Contra Recchione (2014), p. 25.
- 39.
Council of the European Union, 22 December 2015, Doc. 9372/1/15 REV 1, 12621/15, 14718/15.
- 40.
Mitsilegas and Giuffrida (2017), p. 7.
- 41.
Csonka et al. (2017), p. 125.
- 42.
Council of the European Union, 21 May 2014, Doc. 9834/1/14 REV 1.
- 43.
Council of the European Union, 28 November 2014, Doc. 15862/1/14 REV 1, (A).
- 44.
Article 9(1) EPPO Regulation. On the structure of the EPPO see A. Martínez Santos in this volume.
- 45.
Article 9(2) EPPO Regulation.
- 46.
Article 9(3) EPPO Regulation.
- 47.
Article 10(1) EPPO Regulation.
- 48.
Article 10(2) EPPO Regulation.
- 49.
Caianiello (2013a), pp. 123–124: “[i]n the end, the EPPO’s proposal looks more like an enhanced coordination and cooperation office than the first institution of a unified federal criminal justice system, as Article 86 TFEU would have allowed. It looks more like a ‘reinforced Eurojust’ than an European Public Prosecutor Office, that is, an organ empowered to give orders to the judicial authorities of the Member States rather than intervene directly in the field”.
- 50.
Ligeti and Marletta (2016), p. 58.
- 51.
Caianiello (2013a), pp. 116–118.
- 52.
Ligeti and Marletta (2016), p. 60.
- 53.
Which, again, is inconsistent with the objectives that inspired the Commission: Recital n. 8 EPPO Proposal stated that “[t]he organisational structure of the European Public Prosecutor’s Office should also allow quick and efficient decision-making in the conduct of criminal investigations and prosecutions, whether they involve one or several Member States”.
- 54.
Which could, in turn, lead to an intrinsic contradiction, since the institution of the EPPO was specifically intended to avoid, with regard to crimes affecting the financial interests of the Union, the problems, disadvantages and limits arising from the fragmentation of national prosecutions: see Recital n. 5 EPPO Proposal.
- 55.
Ligeti and Marletta (2016), p. 61.
- 56.
On “Investigation measures and other measures”.
- 57.
Article 30 of the EPPO Regulation refers to the following investigation measures: (a) search any premises, land, means of transport, private home, clothes and any other personal property or computer system, and take any conservatory measures necessary to preserve their integrity or to avoid the loss or contamination of evidence; (b) obtain the production of any relevant object or document either in original or in some other specified form; (c) obtain the production of stored computer data, encrypted or decrypted, either in original form or in some other specified form, including banking account data and traffic data with the exception of data specifically retained in accordance with national law pursuant to the second sentence of Article 15(1) of the Directive 2002/58/EC of the European Parliament and of the Council; (d) freeze instrumentalities or proceeds of crime, including assets, that are expected to be subject to confiscation by the trial court, where there is reason to believe that the owner, possessor or controller of those instrumentalities or proceeds will seek to frustrate the judgement ordering confiscation; (e) intercept electronic communications to and from the suspected or accused person, over any electronic communication means that the suspected or accused person is using; (f) track and trace an object by technical means, including controlled deliveries of goods. The number of available investigation measures has also been smaller in past versions of the draft Regulation. The measure under (f) was not present in Article 25(1) Council Doc. 9372/1/15 REV 1, 12621/15, 14718/15. The restriction from twenty-one to five measures had been preceded by a first “cut” operated in the proposal submitted by the Italian Presidency in 2014, Doc. 15862/1/14 REV 1 (Article 26).
- 58.
See also L. Bachmaier in this volume.
- 59.
Doc. 15862/1/14 REV 1, Article 26(a).
- 60.
Ligeti and Marletta (2016), p. 61.
- 61.
This differentiated (and thus more complex) regulation of the different stages of an investigative measure dates back to the Proposal of the Italian Presidency, Doc. 15862/1/14 REV 1.
- 62.
Weyemberg and Brière (2016), p. 32.
- 63.
See para. 3.3 of the Explanatory Memorandum to the Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, EPPO Proposal.
- 64.
Recital n. 24 EIO Directive.
- 65.
Allegrezza et al. (2016), p. 186; Daniele (2015), p. 87; see also Communication from the Commission to the European Parliament and the Council: An area of freedom, security and justice serving the citizen, 10 June 2009, COM(2009)262 final, point 4.2.2.; Green Paper on obtaining evidence in criminal matters from one Member State to another and securing its admissibility, 11 November 2009, COM(2009)624 final, point. 4.1.
- 66.
- 67.
Zerbes (2015), p. 590.
- 68.
In this regard, actually, a distinction must be made. While the principle of mutual recognition, to the extent and within in the boundaries defined by the EIO Directive, applies for non-coercive investigation measures, for measures that imply coercive acts the EIO Directive foresees a procedure that resembles more traditional forms of mutual legal assistance; see also Caianiello (2015), p. 3.
- 69.
- 70.
Article 11 EIO Directive.
- 71.
Article 15 EIO Directive.
- 72.
Article 11(1)(f) EIO Directive.
- 73.
Caianiello (2015), p. 8: this is true especially with regard to the case of non-execution linked to territoriality, such as the one mentioned under (e), because they contradict the idea of a “single legal area” that inspires European legislation in criminal matters as a whole.
- 74.
Bachmaier Winter (2010), p. 586; Bachmaier Winter (2015), p. 51, where the more mitigated approach to the application of the principle of mutual recognition is explained as a reaction to “[t]he experience with the EAW and its ‘disproportionate’ use”; along these lines see also Allegrezza et al. (2016), p. 190; Peers (2016), p. 107.
- 75.
Bachmaier Winter (2015), p. 56.
- 76.
Csonka et al. (2017), p. 129.
- 77.
Article 12(3) EPPO Regulation.
- 78.
- 79.
Article 31(6) and Recital 73 EPPO Regulation.
- 80.
Kuhl (2017), p. 139.
- 81.
The abovementioned catalogue does not include procedural safeguards for children who are suspects or accused persons in criminal proceedings, provided by Directive (EU) 2016/800.
- 82.
Mitsilegas and Giuffrida (2017), pp. 11–12.
- 83.
- 84.
Mitsilegas and Giuffrida (2018), p. 77.
- 85.
- 86.
Article 31, par. 1, second part Council Doc. 9372/1/15 REV 1, 12621/15, 14718/15 stated that “[w]here the law of the Member State of the trial Court requires that the latter examines the admissibility of evidence, it shall ensure it is satisfied that its admission would not be incompatible with Member States obligations to respect the fairness of the procedure, the rights of defence, or other rights as enshrined in the Charter, in accordance with Article 6 TEU”.
- 87.
Article 30, par. 1 Council Doc. 15862/1/14 REV 1.
- 88.
European Parliament, Resolution of 12 March 2014 on the proposal for a Council regulation on the establishment of the European Public Prosecutor’s Office (COM(2013)0534 – 2013/0255(APP)), (5)(vi); Helenius (2015), p. 199.
- 89.
Zerbes (2015), p. 228.
- 90.
Wade (2013), p. 441, where the EPPO Proposal is considered to be “the logical conclusion of discussions which began with the famous Greek Maize case”, since it was in this judgement that the European Court of Justice first articulated the obligation for Member States to protect the interests of the European Communities by equivalent means to those they use to protect their own respective interests.
- 91.
Recital n. 8 EPPO Proposal.
- 92.
Recital n. 12 EPPO Proposal.
- 93.
Recital n. 28 EPPO Proposal.
- 94.
Caianiello (2013a), p. 125.
- 95.
Communication from the Commission to the European Parliament, the Council and the national Parliaments on the review of the proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office with regard to the principle of subsidiarity, in accordance with Protocol No 2, COM(2013)851 final, of 27 November 2013, point 4.1.
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Allegrezza, S., Mosna, A. (2018). Cross-Border Criminal Evidence and the Future European Public Prosecutor. One Step Back on Mutual Recognition?. In: Bachmaier Winter, L. (eds) The European Public Prosecutor's Office. Legal Studies in International, European and Comparative Criminal Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-93916-2_8
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