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The European Public Prosecutor’s Office and Human Rights

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Shifting Perspectives on the European Public Prosecutor's Office

Abstract

A system of prosecution at the European level poses multiple challenges. Among them, the adequate protection of the rights of the individuals involved in supranational investigations comes among the first. In the light of the forthcoming establishment of the European Public Prosecutor’s Office (EPPO), this contribution deals with the place of human rights in the frame of the activities of such a body under four different perspectives. First, the application of the Charter of Fundamental Rights to the measures and acts of the EPPO is discussed. Second, the focus shifts to the provisions of the draft Regulation concerning the procedural safeguards. The third section analyses the debated issue of the judicial review of the acts of the Office. Finally, due attention is paid to the protection of human rights in the frame of cross-border investigations of the EPPO. The scenario emerging from the analysis is full of light and shade and it shows the complexity of one of the most relevant tensions underpinning the forthcoming establishment of this body, namely that between the perceived necessity to ‘upgrade’ the investigations on crimes affecting the financial interests of the EU at the European level and the concurrent need not to ‘downgrade’ the protection of human rights in the frame of supranational proceedings.

Valsamis Mitsilegas is Professor of European Criminal Law, Director of the Criminal Justice Centre and Head of the Department of Law at Queen Mary University of London.

Fabio Giuffrida is Ph.D. Candidate at Queen Mary University of London.

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Notes

  1. 1.

    Proposal for a Regulation on the establishment of the European Public Prosecutor’s Office—Preparation for a general approach, Council doc. 5154/17, 17 January 2017.

  2. 2.

    The Proposal was tabled by the Commission in July 2013: Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, COM(2013) 534 final, 17 July 2013 (‘Commission’s proposal’).

  3. 3.

    Article 6(1) Treaty on European Union.

  4. 4.

    Case C–617/10, Åklagaren v Hans Åkerberg Fransson, judgment of 26 February 2013, para 45, emphasis added. The disapplication envisaged by the Court should occur only when the Charter provides for a ‘right’, whereas this should not be the case when ‘principles’ come into consideration. Whereas the latter have to be ‘observed’ and have to be implemented both by EU institutions and bodies and by acts of Member States, ‘rights’ have to be ‘respected’ (see Article 51 CFR). See also the explanation to Article 51 CFR to be found in the Explanations relating to the Charter of Fundamental Rights, OJ C303/35, 14.12.2007.

  5. 5.

    See in particular Articles 51–53 of the Charter. For commentaries see inter alia Lenaerts 2012, pp. 375–403; Hancox 2013, pp. 1411–1432; Sarmiento 2013, pp. 1267–1304; Fontanelli 2014, pp. 682–700.

  6. 6.

    Case C-399/11, Melloni, judgment of 26 February 2013.

  7. 7.

    Case C-617/10, Fransson, cit., para 26.

  8. 8.

    Case C-206/13, Siragusa, judgment of 6 March 2014.

  9. 9.

    Ibid., para 24.

  10. 10.

    Ibid., para 31.

  11. 11.

    Spaventa 2016, p. 24.

  12. 12.

    Ibid., p. 14.

  13. 13.

    For example, as far as the pre-trial arrest is concerned, the EPPO does not entail any step further with regard to the current scenario of judicial co-operation: if the person to be arrested is not in the Member State in which the European Delegated Prosecutor is carrying out his (her) activities, the latter issues—or requests the competent authority of that State to issue—a European Arrest Warrant for the surrender of the suspect (Article 28 draft Regulation).

  14. 14.

    See also Nieto Martín 2015, pp. 315ff.

  15. 15.

    See Article 12 draft Regulation.

  16. 16.

    Article 7(2) draft Regulation. The structure of the forthcoming Office shall be as follows: ‘2. The European Public Prosecutor’s Office shall be organised at a central level and at a decentralised level. 3. The central level shall consist of a Central Office at the seat. The Central Office shall consist of the College, the Permanent Chambers, the European Chief Prosecutor, his/her deputies, the European Prosecutors and the Administrative Director. 4. The decentralised level shall consist of European Delegated Prosecutors who shall be located in the Member States’ (Article 7(2), (3), and (4) draft Regulation).

  17. 17.

    The expression ‘double hat’ is often used in works and studies concerning the EPPO, since it mirrors the peculiar status of the EDPs: they are national prosecutors who are and remain part of national prosecution services but, in the meanwhile, they are also part of an EU body. Therefore, when they conduct the investigations on crimes falling within the competence of the EPPO, they shall follow the instructions and directions coming from the central level of the EPPO. See, among the many, Spiezia 2013, p. 557; Satzger 2015, p. 74. However, the concept of ‘two hats’ had already been mentioned in the 2001 Green Paper on criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor, p. 29.

  18. 18.

    For example, the investigations have to be initiated when, ‘in accordance with national law, there are reasonable grounds to believe that an offence’ within the competence of the EPPO is being or has been committed (Article 22(1) draft Regulation, emphasis added); investigations are undertaken by the EDPs in accordance with the Regulation and ‘with national law’ (Article 23(1) draft Regulation); ‘the procedures and the modalities for taking the [investigative] measures shall be governed by the applicable national law’ (Article 25(3) draft Regulation); and so on.

  19. 19.

    For instance, in the case of evocation of a case by the EPPO (see Article 22a draft Regulation).

  20. 20.

    Likewise, it has been argued that ‘[a]s an EU body EPPO will be subject to the CFR’ (Wasmeier 2015, p. 155). On the application of the Charter to any action of the EPPO, especially in the light of the Fransson case, see also Meij 2015, pp. 103–105.

  21. 21.

    See Article 4 draft Regulation. Such a peculiar system of European investigations followed by national trials was already envisaged in the Corpus Juris (see Delmas-Marty 1997). For a further bibliography and considerations on the Corpus Juris, see Mitsilegas 2009, pp. 229ff.

  22. 22.

    ‘[…] the European Public Prosecutor’s Office shall undertake investigations, and carry out acts of prosecution and exercise the functions of prosecutor in the competent courts of the Member States, until the case has been finally disposed of’ (Article 4 draft Regulation, emphasis added).

  23. 23.

    However, commenting on the above-mentioned Siragusa case, Spaventa cautiously submits that ‘[i]t is not clear whether Case C-617/10 Åkerberg Fransson […] would have passed the Siragusa test’ (Spaventa 2016, p. 21).

  24. 24.

    Article 17(1) draft Regulation states that the EPPO will be competent for the crimes provided for by the forthcoming Directive on the fight against fraud to the Union’s financial interests by means of criminal law (‘PIF Directive’). The proposal for the Directive was issued by the Commission in 2012 (see Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law, COM(2012) 363 final, 17 July 2012) and negotiations are not over yet. At the time of writing, however, a preliminary agreement has been found in Coreper (see Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law (Second reading) – Analysis of the final compromise text with a view to agreement, Council doc. 14902/16, 2 December 2016).

  25. 25.

    Case C-105/14, Taricco and others, judgment of 8 September 2015. On this judgment see, among the many, Billis 2016, pp. 20–38; Caianiello 2016, pp. 1–17; Giuffrida 2016, pp. 100–112.

  26. 26.

    Case C-105/14, Taricco, cit., paras 49ff.

  27. 27.

    Article 35(1) draft Regulation.

  28. 28.

    Pawlik and Klip 2015, p. 188.

  29. 29.

    See, for example, the Covaci judgment mentioned in the following section.

  30. 30.

    For a recent analysis on the provisions of the draft Regulation concerning the procedural safeguards see Weyembergh and Brière 2016, pp. 34ff.

  31. 31.

    Kaiafa-Gbandi 2015, pp. 245–246.

  32. 32.

    For broader considerations on these Directives, see Tinsley 2013, pp. 461–480.

  33. 33.

    Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, OJ L280/1, 26.10.2010.

  34. 34.

    Directive 2012/13/EU on the right to information in criminal proceedings, OJ L142/1, 1.6.2012.

  35. 35.

    Directive 2013/48/EU on the right of 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 persons and with consular authorities while deprived of liberty, OJ L294/1, 6.11.2013.

  36. 36.

    Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ L65/1, 11.3.2016.

  37. 37.

    Directive (EU) 2016/1919 of the European 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, OJ L297/1, 4.11.2016.

  38. 38.

    Article 35(2) draft Regulation.

  39. 39.

    Mitsilegas 2016c.

  40. 40.

    Article 288 TFEU.

  41. 41.

    All the above-mentioned Directives provide for the obligation both of the Member States to transmit to the Commission the text of the measures adopted to comply with the Directives and of the Commission to submit a report to the Parliament and to the Council assessing the extent to which the Member States have taken the necessary measures in order to implement the Directives: see Articles 9(2) and 10 Directive 2010/64/EU; Articles 11(2) and 12 Directive 2012/13/EU; Articles 15(3) and 16 Directive 2013/48/EU; Articles 11 and 12 Directive (EU) 2016/343; and Articles 10 and 12 Directive (EU) 2016/1919. In addition, the Court of Justice has now full jurisdiction to rule on infringement proceedings in criminal matters, pursuant to Articles 258–260 TFEU.

  42. 42.

    Mitsilegas 2016b, p. 123.

  43. 43.

    See Opinion of AG Bot, Case C-216/14, Criminal Proceedings against Gavril Covaci, 7 May 2015, in particular paras 105–106.

  44. 44.

    See more in Mitsilegas 2016a, pp. 175–176.

  45. 45.

    Mitsilegas 2016d, pp. 125–160.

  46. 46.

    On the concept of legal culture as one encompassing these elements, see Nelken 2012, pp. 1–51. On a view of legal culture as embracing the participants’ experience, see Cotterrell 2008, pp. 709–737.

  47. 47.

    The problem of ‘moral distance’ has been defined as the frequent remoteness or separation of law’s normative expectations from many of those that are current and familiar in the fields of social interaction that it purports to regulate (Cotterrell 1995, pp. 304–305). In a system of mutual recognition based on automaticity, the problem of moral distance may appear particularly acute in the executing Member State, where a judicial authority is required to recognise and execute a decision which is the outcome of the legal system of another Member State on the basis of almost blind trust. Key questions in this context are whether mutual trust can justify the recognition of judgments which may have a detrimental effect on the protection of the fundamental rights of the defendant and whether mutual recognition on the basis of mutual trust can operate without a parallel degree of harmonisation of criminal procedural standards in Member States (see Mitsilegas 2016a, p. 129). The harmonisation of such standards by means of the Directives can therefore reduce the problems linked with the issue of ‘moral distance’ and prepare the field for the creation of a common European system of investigations and prosecutions under the aegis of the EPPO.

  48. 48.

    Weyembergh and Brière 2016, p. 35.

  49. 49.

    Nowell-Smith 2012. On the application of this approach to the access to a lawyer Directive, see also Cras 2014.

  50. 50.

    Bachmaier Winter 2013, p. 530.

  51. 51.

    Ibid., Likewise, Suominen submits that the Directives ‘are positive improvements for the suspect, but perhaps do not solve all nor the bigger problems in relation to deficits in European criminal proceedings’ (Suominen 2014, p. 21).

  52. 52.

    Article 4(1) Directive (EU) 2016/1919.

  53. 53.

    Article 7 Directive (EU) 2016/1919.

  54. 54.

    On the practical problems linked with the expectedly high costs of the defence in the frame of the activities of the EPPO, see Council of Bars and Law Societies of Europe 2013, p. 6; European Criminal Bar Association 2013, pp. 195–196; Mazza 2013, p. 493.

  55. 55.

    See Sect. 6.2 of this contribution.

  56. 56.

    As mentioned, the right to a fair trial and the rights of defence are expressly recalled in Article 35(1) draft Regulation.

  57. 57.

    Case C-216/14, Covaci, judgment of 15 October 2015, para 39.

  58. 58.

    Ligeti and Weyembergh 2015, p. 67 (emphasis added). See also, among the many, Luchtman et al. 2015.

  59. 59.

    ‘A case shall as a rule be initiated and handled by a European Delegated Prosecutor from the Member State where the focus of the criminal activity is or, if several connected offences within the competences of the Office have been committed, the Member State where the bulk of the offences has been committed. […]’ (Article 22(4) draft Regulation).

  60. 60.

    Article 30(2) draft Regulation.

  61. 61.

    German Federal Bar and German Bar Association 2012, p. 4. On the issue of the choice of forum and applicable law in the frame of the proceedings of the EPPO see, among the many, Zimmermann 2015, pp. 156–177.

  62. 62.

    For instance, one could imagine a national legislation which introduces penalties that go far beyond those requested in the PIF Directive, with a possible violation of the principle of proportionality.

  63. 63.

    See, respectively, Recitals Nos. 70 and 73 of the Preamble of the draft Regulation. Article 49 Charter is instead recalled in the Preamble of the draft PIF Directive (see Recital No. 25).

  64. 64.

    Since Joined Cases C-187/01 and C-385/01, Gözütok and Brügge, judgment of 11 February 2003, the issue of transnational ne bis in idem has been dealt with in many decisions of the Court of Justice. For a recent overview of the matter see, among the many, Mitsilegas 2016a, pp. 84ff.

  65. 65.

    See Case C-489/10, Bonda, judgment of 5 June 2012, and Case C-617/10, Fransson, cit.

  66. 66.

    Article 20(1) draft Regulation.

  67. 67.

    Article 57a (2) draft Regulation.

  68. 68.

    On this issue, see for instance Balsamo 2013, pp. 432ff.

  69. 69.

    See, respectively, Recitals Nos. 93 and 108 of the Preamble of the draft Regulation.

  70. 70.

    See the more than 40 Articles of the Chapter VI of the current draft Regulation.

  71. 71.

    Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, OJ L119/89, 4.5.2016. This Directive represents lex specialis (limited to the field of criminal justice) to the General Data Protection Regulation which has been adopted on the same date (see Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L119/1, 4.5.2016).

  72. 72.

    Article 35(2) Commission’s proposal.

  73. 73.

    Also the European Parliament had shed light on the issue, since in its last Resolution on the draft Regulation it stated that ‘the regulation should provide for additional rights of defence for EPPO suspects, in particular […] the right to present evidence and to ask the EPPO to collect evidence on behalf of the suspect’ (European Parliament 2016, p. 3).

  74. 74.

    Article 35(3) draft Regulation (emphasis added). This provision recalls Recital No. 55, according to which the EPPO has the obligation to seek all types of evidence ‘inculpatory as well as exculpatory, either motu proprio or on request of the defence’ (emphasis added). The duty of the EPPO to conduct the investigations in an impartial manner and to seek all relevant evidence, whether inculpatory or exculpatory, is also enshrined in Article 5(4) draft Regulation.

  75. 75.

    Luchtman and Vervaele 2014, p. 148.

  76. 76.

    Allegrezza 2013, p. 485. The need to allow the defendant to carry out investigations and gather evidence in the frame of the activities of the EPPO has been underlined by Council of Bars and Law Societies of Europe 2013, p. 4; European Criminal Bar Association 2013, p. 197; Comi 2014, p. 197.

  77. 77.

    Article 35(2) Commission’s proposal (emphasis added).

  78. 78.

    ‘[…] suspects and accused persons […] shall have all the procedural rights available to them under the applicable national law, including the possibility to present evidence […]’ (Article 35(3) draft Regulation, emphasis added). Likewise, Article 35 of the Commission’s proposal was phrased as follows: ‘1. The suspect and accused person shall have, in accordance with national law, the right to present evidence to the consideration of the European Public Prosecutor’s Office. 2. The suspect and accused person shall have, in accordance with national law, the right to request the European Public Prosecutor’s Office to gather any evidence relevant to the investigation, including appointing experts and hearing witnesses’ (emphasis added).

  79. 79.

    Article 31(1) of the previous version of the draft Regulation (Proposal for a Regulation on the establishment of the European Public Prosecutor’s Office—Completed text, Council doc. 12774/2/16, 12 October 2016) (emphasis added).

  80. 80.

    For further reflections on the provisions concerning the admissibility of evidence in the Commission’s proposal and in the previous version of the draft Regulation see Weyembergh and Brière 2016, pp. 33–34.

  81. 81.

    Article 30(1) Commission’s proposal. For some critical views on this provision see Zerbes 2015, pp 221ff.

  82. 82.

    Caianiello 2013, p. 122. See also Spiezia 2013, p. 568.

  83. 83.

    Helenius 2015, p. 191.

  84. 84.

    Ibid., p. 201.

  85. 85.

    See, respectively, Article 31(1) and (2) of the current draft Regulation.

  86. 86.

    The concept of ‘single European area’ is mentioned in Article 25(1) of the Commission’s proposal. For some considerations on this issue see Damaskou 2015, p. 147. See also Sect. 6.5 of this contribution.

  87. 87.

    Article 36(1) Commission’s proposal.

  88. 88.

    Article 36(2) Commission’s proposal.

  89. 89.

    This applied to the decision to dismiss a case following a transaction (Article 29(4) Commission’s proposal).

  90. 90.

    Explanatory Memorandum to the Commission’s proposal, para 3.3.5.

  91. 91.

    Ibid.,

  92. 92.

    Ibid., p. 5.

  93. 93.

    Preamble of the Commission’s proposal, Recitals Nos. 37–39 (emphasis added).

  94. 94.

    In this context, see also the established Luxembourg case-law according to which national courts have no jurisdiction themselves to declare the invalidity of measures taken by EU institutions (e.g. Case 314/85, Foto-Frost, judgment of 22 October 1987).

  95. 95.

    Article 263, fifth paragraph TFEU.

  96. 96.

    For similar considerations see Meij 2015, pp. 115–117.

  97. 97.

    See for instance the Court’s rulings in the Kadi litigation, and in particular the Court’s findings in Kadi II (Joined Cases C-584/10 P, C-593/10 P. and C-595/10 P, European Commission v Kadi, judgment of 18 July 2013).

  98. 98.

    For a detailed and negative subsidiarity assessment of the Commission’s draft EPPO Regulation, see House of Lords European Union Committee 2013.

  99. 99.

    On the EPPO and the principle of subsidiarity, see Fromage 2015, pp. 1–23; Wieczorek 2015, pp. 1247–1270; Mitsilegas 2016a, pp. 40ff.

  100. 100.

    See more in Mitsilegas 2016a, pp. 115–116.

  101. 101.

    See above, footnote 16.

  102. 102.

    For instance, pursuant to Article 9(3) draft Regulation it is for the Permanent Chamber to decide to bring a case to judgment, to dismiss a case, to apply a simplified procedure, and to reopen an investigation.

  103. 103.

    Mitsilegas 2015, pp. 76ff.

  104. 104.

    On the issue of the judicial review of the acts of the EPPO see, among the many, Ðurđević 2012, pp. 986–1010; Giudicelli-Delage et al. 2015.

  105. 105.

    Article 36(1) draft Regulation.

  106. 106.

    This contribution focuses only on the judicial review of the procedural acts of the EPPO. However, it can be reminded that the Court of Justice is also competent in any dispute concerning: (i) compensation for damage caused by the EPPO; (ii) arbitration clauses contained in contracts concluded by the EPPO; and (iii) staff-related matters (respectively, Article 36(4), (5), and (6) draft Regulation). The Court of Justice has jurisdiction on the dismissal of the European Chief Prosecutor or European Prosecutors, too (Article 36(7) draft Regulation). Finally, pursuant to the fourth paragraph of Article 263 TFEU, the Court is competent to review the decisions of the EPPO which are not procedural acts, such as those dismissing the EDPs or concerning data protection (Article 36(8) draft Regulation).

  107. 107.

    Article 36(2)(a) draft Regulation.

  108. 108.

    Article 36(2)(b) draft Regulation (emphasis added).

  109. 109.

    Article 36(2)(c) draft Regulation.

  110. 110.

    Article 36(3) draft Regulation (emphasis added).

  111. 111.

    Chalmers et al. 2014, p. 444.

  112. 112.

    Ibid., pp. 444–455.

  113. 113.

    For further considerations on the judicial review of the EPPO’s dismissal decisions, see Göhler 2015, pp. 102–125.

  114. 114.

    Article 33(1) draft Regulation.

  115. 115.

    Article 36(3) draft Regulation.

  116. 116.

    It can also be reminded that, pursuant to Article 5(3) draft Regulation, ‘The investigations and prosecutions on behalf of the European Public Prosecutor’s Office shall be governed by this Regulation. National law shall apply to the extent that a matter is not regulated by this Regulation. […] Where a matter is governed by national law and this Regulation, the latter shall prevail’ (emphasis added).

  117. 117.

    See Articles 21(3), Corpus Juris 2000 (Delmas-Marty and Vervaele 2000, pp. 187ff).

  118. 118.

    Delmas-Marty 2000, p. 53 (emphasis added). Eventually, the pre-trial chamber was not included in the text of the Corpus Juris 2000.

  119. 119.

    Van den Wyngaert 2004, pp. 238–239.

  120. 120.

    See Sect. 6.3.1 of this contribution.

  121. 121.

    Article 22(4) draft Regulation.

  122. 122.

    Article 22(5)(a) draft Regulation.

  123. 123.

    Article 30(2) draft Regulation.

  124. 124.

    Article 30(2) draft Regulation (emphasis added).

  125. 125.

    Article 36(2)(c) draft Regulation.

  126. 126.

    Article 20(5) draft Regulation (emphasis added).

  127. 127.

    For similar views on the need of an EU scrutiny on the matter see, among the many, Vervaele 2010, p. 192; Candi 2013, pp. 629–630; Lohse 2015, p. 181.

  128. 128.

    European Parliament 2016, p. 3 (emphasis added).

  129. 129.

    Ibid. See Giuffrida 2017, pp. 32–34.

  130. 130.

    According to Article 48 of the latest version of the Statute of the Court of Justice of the European Union, as from 1 September 2019 the General Court shall consist of two judges per Member State.

  131. 131.

    Expedited procedures of the General Court are regulated by Chapter 16, Title III of the Rules of Procedure of the General Court of 4 March 2015 (OJ L105/1, 23.4.2015), as amended on 13 July 2016 (OJ L217/71, 12.8.2016). On the establishment of specialised chambers within the General Court, see Sarmiento 2015.

  132. 132.

    Rules of Procedure of the Court of Justice of 25 September 2012 (OJ L265/1, 29.9.2012), as amended on 18 June 2013 (OJ L173/65, 26.6.2013) and on 19 July 2016 (OJ L217/69, 12.8.2016).

  133. 133.

    Respectively, Articles 105–106 and 133ff. Rules of Procedure of the Court. For an overview of the accelerated procedures before the Court of Justice see Wathelet 2014, pp. 33–45, who also briefly discusses the priority treatment pursuant to Article 53(3) Rules of Procedure of the Court (‘The President may in special circumstances decide that a case be given priority over others’). However, former Advocate General Jacobs warned that the accelerated procedures ‘must be used sparingly because they lead to greater delays in other cases’ (Jacobs 2013, p. 53).

  134. 134.

    See Articles 160ff. Rules of Procedure of the Court.

  135. 135.

    Article 25(1) Commission’s proposal.

  136. 136.

    Delmas-Marty 2010, p. 167.

  137. 137.

    Article 18(2) Commission’s proposal.

  138. 138.

    Article 26(1) draft Regulation.

  139. 139.

    Article 26(3) draft Regulation.

  140. 140.

    Article 26(7) draft Regulation.

  141. 141.

    Article 26(5) draft Regulation.

  142. 142.

    Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L130/1, 1.5.2014. See Giuffrida 2017, pp. 21–25.

  143. 143.

    Weyembergh and Brière 2016, p. 31.

  144. 144.

    Article 1 Directive 2014/41/EU.

  145. 145.

    Article 13(1) Directive 2014/41/EU.

  146. 146.

    Articles 34(1) and 36(1) Directive 2014/41/EU. The conventions replaced are: (a) the 1959 Convention on Mutual Assistance in Criminal Matters of the Council of Europe and its two additional protocols, as well as the bilateral agreements concluded pursuant to Article 26 thereof; (b) the Convention implementing the Schengen Agreement; and (c) the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union and its protocol. As we can read in Recitals Nos. 43–45 of the Preamble of the Directive, the United Kingdom is bound by the Directive, whereas Ireland and Denmark are not. At the time of writing, the effects of the referendum on the exit of the UK from the EU are not known and the UK has not yet notified its intention to withdraw from the Union pursuant to Article 50 TEU.

  147. 147.

    Article 11(1)(f) Directive 2014/41/EU.

  148. 148.

    Recital No. 10 of the Preamble of Directive 2014/41/EU reads as follows: ‘The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused’ (emphasis added).

  149. 149.

    Article 27 draft Regulation (emphasis added).

  150. 150.

    For a discussion, see Baker 2011, paras 5.120–5.155; Joint Committee on Human Rights 2011, pp. 40–43.

  151. 151.

    For an overview of the debate, see Ostropolski 2014, pp. 167–191.

  152. 152.

    For a broader analysis on proportionality and mutual recognition, see Mitsilegas 2016a, pp. 142ff.

  153. 153.

    See Article 6(1) Directive 2014/41/EUEU.

  154. 154.

    Article 10(3) Directive 2014/41/EU (emphasis added).

  155. 155.

    Article 26(5)(c) draft Regulation (emphasis added).

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  1. Queen Mary University of London, London, UK

    Valsamis Mitsilegas & Fabio Giuffrida

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  1. Valsamis Mitsilegas
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    Willem Geelhoed

  2. T.M.C. Asser Instituut, The Hague, The Netherlands

    Leendert H. Erkelens

  3. T.M.C. Asser Instituut, The Hague, The Netherlands

    Arjen W.H. Meij

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Mitsilegas, V., Giuffrida, F. (2018). The European Public Prosecutor’s Office and Human Rights. In: Geelhoed, W., Erkelens, L., Meij, A. (eds) Shifting Perspectives on the European Public Prosecutor's Office. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-216-3_6

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