European Public Prosecutor
72. No provision is made for a European Public Prosecutor
in the EU Treaty. The European Commission has canvassed the case
for such a figure on a number of occasions, most recently in its
Green Paper of 2002, on which we have reported?.[72]
We have also recently reported on the
Commission's follow-up report, in which it claims to have found
majority support among those consulted for its proposals, a conclusion
which we found to be based on a highly selective assessment which
did not reflect the substantial body of opinion opposed to the
creation of a European Public Prosecutor.[73]
73. Working Group X's report states that the Group,
or a "significant number" of its members,[74]
proposed that the Treaty should provide a legal basis for the
creation of a European Public Prosecutor responsible for "detecting,
prosecuting, and bringing to judgment in the national courts the
perpetrators of crimes prejudicial to the Union's financial interests",
but that "others have considered that a convincing case was
not made for the creation of such a body and that there were strong
objections on both practical and accountability grounds".[75]
74. Mr Heathcoat-Amory told us that the Group was
divided on the issue and that he and others found it surprising
that the mechanism for setting up the European Public Prosecutor
had found its way into the draft Constitutional Treaty:
"It certainly did not have the support of anything
like the majority of the Working Party. I am afraid it is typical
of this whole procedure that there is cherry-picking going on
and someone in the Presidency or the Praesidium or the Secretariat,
which of course is dominated by the Commission and those who work
in Brussels, take things they like and put them in and then it
is a frightful job for objectors to get them taken out".[76]
75. Mr Jakobi, of Fair Trials Abroad, who had attended
a meeting organised by OLAF,[77]
was, if anything, even more direct on this point. He gave this
account of the OLAF meeting:
"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."[78]
76. Notwithstanding the division of opinion within
the Working Group, the draft Treaty contains an Article (Article
III-170) providing for the creation of a European Public Prosecutor's
Office (EPPO) within Eurojust. The EPPO would be responsible for
"investigating, prosecuting and bringing to judgment"
the perpetrators of serious crimes affecting more than one Member
State and offences against the Union's financial interests. A
"European law" would determine the general rules applicable
to the EPPO, its functions, rules of procedure (including those
on the admissibility of evidence) and rules applying to legal
challenges to procedural decisions taken by the EPPO.
77. None of those who provided evidence to us gave
any support to the Commission's proposals as reflected in the
report of Working Group X and the draft Article. Mr Hain told
us that the Government was still opposed to the creation of a
European Public Prosecutor and that it had tabled an amendment
to remove the Article from the draft Treaty.[79]
Mr Heathcoat-Amory objected to the proposal on the grounds that
it did not respect the diversity of legal systems across Europe
or the principle of mutual recognition but was taking the opposite
approach by seeking to unify such systems.[80]
78. JUSTICE was opposed to the proposal on the grounds
that it raised serious issues about the possibility of "forum-shopping",
by which the EPPO could take advantage of differing standards
in the burden of proof, mode of trial, sentencing and admissibility
of evidence across the EU. JUSTICE believed that the proposals
were unworkable and could result in watering down of procedural
standards, in particular in relation to the admissibility of evidence,
and that the need to establish a European Public Prosecutor's
Office had not yet been established. Professor Guild stated that,
whilst JUSTICE was not in favour of a European Public Prosecutor,
if one was to be established the Prosecutor would need to be subject
to the control of a judicial mechanism at the same supranational
level. She also pointed to the need for democratic accountability,
which could involve the national parliaments.[81]
79. Statewatch objected to the proposal on similar
grounds. Professor Peers argued that the "hybrid system"
of a European Public Prosecutor who then operated within the national
courts ran the severe risk both of being inefficient and of jeopardising
a suspect's rights. A defendant, even in one State, would not
know under which system he would be tried, making it impossible
for him to defend his rights. More fundamentally, Professor Peers
questioned the need for a European Public Prosecutor as cross-border
cooperation and harmonisation of criminal procedure developed.
Jurisdictional rules would give a clear answer at an early stage
as to which courts should entertain the prosecution. Whereas international
criminal courts had been created to deal with some extremely serious
crimes where there was a good chance of a State granting immunity,
fraud against the EU and other serious cross-border crimes were
"nothing like as serious as war crimes or crimes against
humanity, not is there anywhere like the risk of impunity".
Professor Peers concluded that the case for the European Public
Prosecutor was "always based on the assumption that we are
still in 1995 …and has not really updated itself as to the
current position".[82]
80. Finally, we note that the Criminal Bar Association
considers that the proposal for a European Public Prosecutor would
have a major impact on national prosecuting authorities, and on
suspects and defendants.[83]
81. We have
repeatedly opposed the proposal to create a European Public Prosecutor,
considering it impractical and likely to remove the prosecution
function from democratic accountability. In the light of the evidence
given to us about the risk of "forum-shopping", with
the Prosecutor selecting the forum where he is most likely to
secure a conviction, we note that the proposal also has the potential
for creating an engine of oppression.
82. We entirely
support the Government's opposition to this proposal and we look
forward to the deletion of this provision from the draft Treaty.
72 HC 152-xix (2001-02), para 5 (13 February 2002);
HC 152-xxxiv (2001-02), para 14 (26 June 2002). Back
73
HC 63-xxi (2002-03), para 16 (14 May 2003). Back
74
The wording is ambiguous: CONV 426/02, p 20. Back
75
CONV 426/02, p 20. Back
76
Q 13. Back
77
OLAF is the EU's anti-fraud body. Back
78
Q 141. Back
79
Q 100. Back
80
Q 13. Back
81
Appendix 3, paras 8-9; QQ 159, 161-2. Back
82
Q 141. Back
83
Appendix 4, Annex para 5. Back
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