Select Committee on European Scrutiny Twenty-Sixth Report


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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