Michiel Luchtman, Jannemieke Ouwerkerk, Marloes van Noorloos, Pim Geelhoed, Jorrit Rijpma, and Louis Middelkoop are affiliated with the Meijers Committee (www.commissie-meijers.nl/en).
The EU’s proposed European Public Prosecutor’s Office (EPPO) has sparked significant debate among Member States. The EPPO’s role would be to investigate and prosecute fraudulent use of EU funds, with discussions already underway to expand its jurisdiction to include terrorism and other serious crimes. Current political dialogue centers around the necessity of this supranational entity and the potential impact on national sovereignty, particularly within the sensitive realm of criminal justice.
Assuming the EPPO’s establishment in the near future, it’s crucial to prioritize a thorough examination of the proposal’s content, specifically the safeguards for fundamental rights. Concerns arise due to the lack of clarity surrounding the oversight and effective control mechanisms for the EPPO’s actions.
Procedural Rights in EU Criminal Law
The question of ensuring procedural rights within transnational law enforcement is a recurring theme in EU legislation. Given the daily cooperation among Member States, exemplified by the European arrest warrant mechanism, existing cooperation frameworks incorporate provisions for legal protection.
However, the EPPO proposal marks a significant step towards integrating criminal justice beyond any previous instrument. The EPPO would have the authority to employ intrusive coercive measures, mirroring the powers of national prosecutors, but across all participating Member States. This raises the question of whether sufficient scrutiny has been applied to the conditions governing searches, interceptions, arrests, and detentions within supranational investigations.
Paradoxically, many Member States, wary of ceding power to Brussels, resist further harmonization of criminal procedure. Supporters of the EPPO argue that existing fundamental rights enshrined in treaties and the EU Charter, along with adherence to national procedural safeguards in the country of operation, provide adequate citizen protection.
From National to Transnational Criminal Procedure
However, safeguards designed for domestic legal systems may not seamlessly apply to the transnational framework of the EPPO. This discrepancy poses significant challenges. Consider a scenario where the EPPO conducts a house search in Amsterdam without proper judicial authorization, with the case ultimately tried in a Milanese court. Should Italian judges be expected to navigate complex Dutch legal precedents on unlawful searches? Similarly, should the EPPO be permitted to conduct remote searches of personal computers, potentially circumventing stricter regulations in the device’s location? This highlights the increased mobility not just of criminals, but also of witnesses, information, and evidence within the EU’s evolving area of freedom, security, and justice. The proposal’s silence on these issues risks encouraging forum shopping and a race to the bottom in terms of legal safeguards.
The proposed EPPO framework fails to address a crucial question: Does the discretion in choosing applicable national laws for investigatory powers, procedural safeguards, judicial oversight, admissibility of evidence, etc., open the door to arbitrary infringement on the fundamental rights of individuals involved in criminal proceedings?
Both the European Court of Human Rights and the European Court of Justice emphasize the rule of law as a crucial defense against arbitrary interference with citizens’ fundamental rights. The law provides citizens with clarity regarding their rights and obligations, supports their defense rights, and empowers courts to prevent the abuse of executive discretion. The challenge within the EPPO proposal lies not in the absence, ambiguity, or disregard for national laws, but rather in the EPPO’s operation across over twenty distinct legal systems. This raises concerns about the potential ease of finding a legal basis for intrusive measures. The EPPO could potentially exploit the most favorable rules from various criminal procedure codes, shifting strategies throughout the process without input from opposing parties or judicial oversight. This lack of predictability leaves citizens uncertain about which national rules apply to their case.
As a community founded on the rule of law, the EU has a duty to protect its citizens from arbitrary actions by European law enforcement. To uphold the rule of law within the EPPO, citizens need legal certainty regarding the applicable law. This includes transparency and accessibility to information about their rights and obligations, and the ability to exercise those rights in court.
Barnard & Peers: chapter 9, chapter 25