Examination of Witnesses (Questions 140-143)
WEDNESDAY 26 MARCH 2003
PROFESSOR STEVE
PEERS AND
MR STEPHEN
JAKOBI
140. So it would be fair to say that you think
there is a lot more work needing to be done on Article 17?
(Professor Peers) Well, I think one argument would
be to reduce the number of crime definitions here or at least
to shift the whole system to unanimous vote or have some kind
of procedural requirement to actually examine whether or not there
is a significant cross-border element to some of these crimes.
Since the 1980s we have had this assumption that cross-border
crime is increasing, but I have never actually seen the evidence,
to be fair. It may well have done, it may well be about to, and
there may be a need to address, that cross-border crime even if
it is being reduced, but still the assumption that we must do
more and more and more because of the exponential increase in
cross-border crime is an assumption that seems to go unchallenged.
I have not seen or heard any evidence, though perhaps the Committee
have.
Mr Connarty
141. Let me move on to something which has troubled
this Committee for some time and that is the proposal for a European
Public Prosecutor's Office. We have expressed very strongly in
this Committee that this would not be a positive step as at present
Law Officers in England and the Lord Advocate in Scotland are
accountable to Parliament in Westminster or Edinburgh for prosecutions.
It would appear that the European Public Prosecutor, if it was
brought in, and Eurojust would escape such accountability. What
is your view of the possible establishment of a European Public
Prosecutor's Office which is provided for in Article 20, even
though it appears that there is little support for it in the submissions
to the Praesidium?
(Mr Jakobi) I do not know whether Professor Peers
attended the OLAF meeting for pushing forward with the idea of
a European Public Prosecutor, the experts meeting, but I was invited
to that. I think to adduce this in the current atmosphere, even
for Community fraud which does give special problems, and it is
very hard to have, say, a national prosecution system, which is
their argument, now would be a nightmare. We do not even know
whether Eurojust will work well, it is too new. It is possible
that in the context of proper safeguards for the citizen and in
the context of proper democratic control for the Office and all
other ifs, buts and maybes, something like that could evolve 20
years down the line, but I think the general consensus of the
experts was, "Not now. Let's see how Eurojust works anyway
and iron out the number of bugs". What was quite extraordinary
was the way that the Commission rapporteurs were determined to
take their view as a consensus view over and above the view of
all the national representatives and experts around. There were
very few voices in a very large assembly in favour of a European
Public Prosecutor. Now, I think it is a no-no and this is an attempt
to put it in sideways. That is my view.
(Professor Peers) In our submission we had some misgivings
about the idea of a European Public Prosecutor and we should either
not have it at all or move to something fully-fledged, like the
tradition of international criminal courts which is that if you
are to have a prosecutor, you have got a criminal court which
follows a criminal procedure and a court system and balance is
built in within that system, so you either choose one or the other.
The idea of this hybrid system which emerged in Article 20 of
a Prosecutor who then goes into national courts runs the severe
risk of both being an inefficient approach to the issue and of
jeopardising a suspect's rights because would the Public Prosecutor
have the knowledge of the national criminal system in order to
do that because it might be different systems that the Public
Prosecutor would be involved in? Would he have enough staff who
had that knowledge for leaping into the national criminal systems?
Presumably they would be working in more than one occasionally.
Similarly, you would have to know in your own state which system
you are going to be prosecuted under, otherwise you could not
have any possibility of effectively defending the rights, as the
legal adviser, of a suspect, so that is a fundamental problem.
Even underneath that question there is a fundamental question
as to whether any such thing is necessary, particularly if we
move towards additional harmonisation of law and additional cross-border
cooperation as regards to criminal procedure, coupled with the
better rights for suspects. Do we need a Public Prosecutor at
all, especially as we have also got jurisdictional rules which
could give you a clear answer at an early stage, if the European
Union develops them, as to which courts should prosecute? What
really is the need for a Public Prosecutor? The historical creation
of international criminal courts has been based on the idea that
there are certain crimes, like war crimes, which are not only
extremely serious, but for which there is a good chance of a state
granting impunity, therefore, you want to have an international
tribunal potentially to deal with that. Fraud against the EU and
other serious crimes of a cross-border dimension do not have such
a serious impact and are nothing like as serious as war crimes
or crimes against humanity, nor is there anywhere like the risk
of impunity. There may be some risk obviously that a civil servant
would be sheltered if he were involved in fraud against the Community,
but you could deal with that, I think, by moving to some sort
of monitoring process and complaints process at the European level.
If you have got a system, as we already have with the European
arrest warrant, we will soon have the freezing and confiscation
of assets and also we have got the Convention on fraud against
the EU budget, and that could be replaced by measures to be adopted
by a qualified majority vote, and I understand the argument for
that, so if you have already got that and more to come, then what
is the point of a European Public Prosecutor? The case for it
is always based on the assumption that we are still in 1995 before
we had any of these things and it has not really updated itself
as to the current position. Now we have Conventions on fraud and
the other measures which have been agreed, even before this new
Treaty, if it comes into force, would change the situation, the
argument has never explained why the current provisions are not
adequate to deal with fraud or any other serious cross-border
crime.
Mr Cash: You have given a very interesting and
important response, both of you, but of course the problem remains
that this is something which is being pressed and I thought I
would just put on the record that the Criminal Bar Association
quite clearly takes a similar view to what you have expressed.
Chairman, are we actually going to read into the report the evidence
we have got here in our papers which came from the written submissions?
Mr Connarty: They will be published in fact,
all of them. I think that Mr Cash has reiterated something that
many of us have said for many years about this proposal.
Mr David
142. Thank you very much for the evidence you
have given us this morning and I was just wondering two things:
firstly, whether there is anything that you specifically wanted
to add which we have not covered already; and, secondly, I think
it is important to remember that we are talking about the Constitution
of the European Union which would apply of course not just to
the existing Member States, but to the 10 or possibly more accession
countries in the future. I was wondering really if you thought
the deliberations so far have actually taken into account the
specific circumstances that exist in many of those accession countries?
(Mr Jakobi) I have found with my colleagues in Fair
Trials Abroad that we have been compelled onward and upward, if
I can put it this way. Ten or eleven years ago now I founded Fair
Trials Abroad as a rather peculiar Neighbourhood Law Centre and
the neighbourhood was pretty big, but essentially we were merely
case workers trying to get justice on an individual basis for
people in each other's courts. The development of Europe has suddenly
made us realise that we can only flourish or do any good for our
clients at grassroots level if we take some interest in our environment.
The European arrest warrants suddenly made us look carefully at
what was going on in the European justice system and you are absolutely
right, it is the problem of the Hobbits in The Lord of the
Rings where we are the Hobbits and suddenly we have had to
take an interest in things which are way beyond our capabilities
and the rest of it, but it is a matter of interest in isolation
that this Committee is the first serious committee that I am aware
of throughout Europe, I have not heard of anybody else, striking
the first real blow for any form of meaningful democratic participation
in the governance of the European legal space. Therefore, the
importance of the deliberations of this Committee in many ways,
in our humble eyes, transcends the Foreign Affairs Committee and
much better known committees of the Houses of Parliament. This
is from our point of view the first blow in a very big battle
which we cannot fight, and over to you, if I can put it that way.
Mr Connarty
143. I have read the books and I know who won
in The Lord of the Rings. This generation that is waiting
for the last film instalment ought to read the book!
(Professor Peers) In addition to a number of points
in relation to immigration and asylum that Statewatch is interested
in, and we have made submissions about that, what I would emphasise
is that although this Committee, I think, is obviously more interested
perhaps in the legislative side of pieces of criminal law as a
legislator of course, there is of course a very important operational
side to what is proposed in the new title by the Praesidium in
Article 5 and you would have quite significant operational powers.
The French and the Spanish want to call this Committee the Interior
Security Committee of the European Union and compare it to the
Political & Security Committee which has been set up which
has powers to control defence operations. It has already got that
in the case of Macedonia and it is taking binding decisions running
the operation of that mission. There is an established structure
for peacekeeping and similar types of activity internationally,
but there is not such a thing for interior security co-ordination
and we have great fears about the potential lack of accountability
of this committee which will be running operations. It almost
looks like a return to the position of 1975 when the Trevi Committee
was first set up as a hard core of coordinators, coordinating
operational missions and exchanging information. Certain protections
like the exchange of personal data are not reflected either. They
are referred to in the comment, but not the main text and I would
urge the Committee to have a close look at that and to focus on
the serious accountability concern and issues that arise from
that. Thank you very much for inviting us to make our comments.
Mr Connarty: Thank you very much for coming
along. It has been very useful to our inquiry. I think it is important
that we go back again and again through our representatives to
the Praesidium and the Convention to make sure that things which
are being put in by the Commission without any legitimacy from
democratic organisations are expunged from the final version of
the Articles. You have said there is time to do that and your
evidence has been very helpful to our cause.
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