File #2287: "2018_Book_TheEuropeanPublicProsecutorSOf.pdf"
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1|Introduction: The EPPO and the Challenges Ahead|6
1|Contents|14
1|About the Contributors|16
1|The Status of Independence of the European Public Prosecutor’s Office and Its Guarantees|20
2|1 Introduction|20
2|2 What Independence for the Future European Public Prosecutor’s Office?|24
2|3 The Guarantees of the Independence of the European Public Prosecutor’s Office in the Regulation of 2017 and in the Pre-legislative Work of the Council|26
3|3.1 The Organizational Structure of the European Public Prosecutor’s Office|26
4|3.1.1 The College|28
4|3.1.2 The Permanent Chambers|29
4|3.1.3 The European Chief Prosecutor and the Deputy Chief Prosecutors|30
4|3.1.4 European Prosecutors|32
4|3.1.5 European Delegated Prosecutors|33
4|3.1.6 The Administrative Director|35
4|3.1.7 Seconded National Experts|35
3|3.2 Regulatory Autonomy of the European Public Prosecutor’s Office|36
3|3.3 Budgetary and Managerial Autonomy of the European Public Prosecutor’s Office|37
2|4 Concluding Remarks: Some Problematic Aspects|38
2|References|41
1|The Material Competence of the European Public Prosecutor’s Office|43
2|1 Introduction|43
2|2 Legal Basis: What the Treaty of the European Union Envisaged for the European Public Prosecutor’s Office|44
2|3 Material Competence of the European Public Prosecutor’s Office: Determination by a Dynamic Reference to the PIF Directive|47
2|4 PIF Directive: Competence Framework for the European Public Prosecutor’s Office. PIF Directive and VAT|48
3|4.1 PIF Directive and VAT|50
2|5 Related Crimes, Including Inextricability and Instrumentality: The Case of Criminal Organisations and the Remaining Cases|53
2|6 The Exercise of the Competence by the European Public Prosecutor’s Office|55
2|7 The Reporting Obligations of the Member States|58
2|8 Conclusions|58
2|References|59
1|The European Public Prosecutor’s Office and Its Coordination with the National Public Prosecutor’s Office: The Model of Complementarity|60
2|1 Introduction|60
2|2 The Principle of Complementarity as the Fountain of Inspiration for an Alternative Model|63
3|2.1 Background|63
3|2.2 The Principle of Complementarity in the Rome Statute of the ICC|64
3|2.3 The Principle of Complementarity as a Parallel Mechanism for an Alternative Model of an EPPO|65
4|2.3.1 The Criterion of Complementarity|65
4|2.3.2 The Situation in Relation to the ICC|67
4|2.3.3 Differences and Problems|67
2|3 The Principle of Complementarity as a Guiding Principle for the Future EPPO’s Work|68
3|3.1 The Role of Complementarity in the EPPO’s Exercise of Its Right of Evocation|69
3|3.2 Complementarity Guiding the Relationship Between the Centralised and the Decentralised Level Within the General Structure of the EPPO|69
2|4 Conclusion: Advantages of implementing the Principle of Complementarity|71
2|References|72
1|Choosing the National Forum in Proceedings Conducted by the EPPO: Who Is to Decide?|75
2|1 Choosing Forum Between Multiple Jurisdictions: Framework and History|75
2|2 EPPO and Jurisdiction|79
2|3 A Jurisdiction Established by Law?|80
2|4 The Rules in the EPPO Proposal|85
2|5 The Rules in the Final Text (and the Rejection of the Principle of European Territoriality)|87
2|6 The New Rules on the Transferring of Proceedings to Another State|91
2|7 Problematic Issues: Understanding the “Focus” of the Criminal Activity|92
2|8 Other Problematic Issues (and the Inadequate System of Judicial Review)|95
2|9 Final Remarks (Can the Defence Have a Say?)|97
2|References|100
3|Further Readings|102
1|The Relationship Between Eurojust and the European Public Prosecutor’s Office|103
2|1 Introduction|104
2|2 Institutional Viewpoint|106
2|3 Practical Aspects|107
3|3.1 Administrative and Managerial Links|108
3|3.2 Operational Links|109
2|4 Other Possible Ways to Establish Links|112
2|5 Final Remarks|114
2|References|116
3|Further Readings|117
1|The Decision to Drop the Case: Res Iudicata or Transfer of Competence?|118
2|1 Preliminary Considerations|119
2|2 The Commission’s Proposal v. the Council’s Proposal: Two Very Different Structures|120
2|3 The Provisions Concerning the Deferral of the Case to National Prosecutors|121
2|4 Provisions Concerning the Dismissal of the Case|124
2|5 Res Iudicata?|125
2|6 Conclusions|128
2|References|129
1|Cross-Border Investigations Under the EPPO Proceedings and the Quest for Balance|131
2|1 Introduction|131
2|2 Cross-Border Investigations|134
3|2.1 Cross-Border Evidence Gathering in the EPPO Regulation: The Assignment System|135
3|2.2 Relationship with Other Mutual Recognition Instruments|137
3|2.3 Article 31.5 of the EPPO Regulation on the Assigned Investigative Measure|138
3|2.4 The Requirement of Judicial Authorization|142
3|2.5 Enforcement of Assigned Measures|143
3|2.6 Cross-Border Investigations by the EPPO and Rules Under the EIO: The Case of the Interception of Communications|144
2|3 Cross-Border Investigations Under the EPPO Regulation and the Right to Legal Assistance|146
3|3.1 Access to a Lawyer in the Collecting of Cross-Border Evidence|147
2|4 Concluding Remarks|150
2|References|150
1|Cross-Border Criminal Evidence and the Future European Public Prosecutor. One Step Back on Mutual Recognition?|154
2|1 Introduction|154
2|2 Admissibility of Cross-Border Evidence Under the System Envisaged by the EPPO Proposal|155
2|3 Regulation 1939/2017: A Flattened Structure for the EPPO|162
2|4 A Flat Organizational Structure Functions Horizontally: One (?) Step Backwards|164
2|5 Cross-Border Investigations: Back to the Model of Legal Assistance|166
2|6 Mutual Legal Assistance: Ahead to the Past? A Comparative Look at the EIO|168
2|7 Admissibility of Cross-Border Evidence Under the EPPO Regulation|170
2|8 Concluding Remarks|174
2|References|175
1|Transactions and “Simplified Procedures” in the Framework of the European Public Prosecutor’s Office. A National Perspective|178
2|1 Introduction|178
2|2 Overview of the Conformidad in Spanish Criminal Procedure|180
2|3 “Simplified Prosecution Procedures” Under the EPPO Regulation|182
3|3.1 The Draft Regulation of the EPPO of 2013|182
3|3.2 The Simplified Procedures Under the EPPO Regulation|185
2|4 Implementation of the EPPO “Simplified Procedures” in Spain|186
2|5 Concluding Remarks|189
2|References|190
1|Protection of Fundamental Rights of the Suspect or Accused in Transnational Proceedings Under the EPPO|191
2|1 Introduction|192
2|2 Structure of the EPPO and Fundamental Rights|193
2|3 Procedural Safeguards in the EPPO Regulation|196
2|4 A Missed Opportunity?|197
2|5 Investigative Measures in EPPO Proceedings|199
2|6 Defence Rights in EPPO Proceedings|202
2|7 Admissibility of Cross-Border Evidence|205
2|8 Concluding Remarks|207
2|References|210
1|Criminal Investigations, Interference with Fundamental Rights and Fair Trial Safeguards in the Proceedings of the European Public Prosecutor’s Office. A Human Rights Law Perspective|212
2|1 Introductory Remarks|212
2|2 The Initiation of a Criminal Inquiry by the European Public Prosecutor’s Office|215
3|2.1 The Initiation of Criminal Investigations and the Right to Be Heard Fairly|215
3|2.2 The Preferment of Charges and Procedural Guarantees in the Investigative Phase: Rights to Information, Legal Assistance and the Privilege Against Self-incrimination|218
2|3 The Distribution of Investigative Competences and the Reallocation of Cases. Repercussions on the Right to a Defence and the Need for Pre-determination of the Competent Forum by the Law|220
2|4 Intrusive Investigations, Interference with Fundamental Rights, and Procedural Safeguards|226
2|5 The Completion of the Pre-trial Inquiry and the Decision on Whether or Not to Bring the Defendants to Court with a Formal Accusation|230
3|5.1 The Decision on Whether or Not to Prosecute the Alleged Offender and the Enactment of a Model of Internal Oversight of the Prosecutorial Authority in Charge of the Investigations|230
3|5.2 The Dismissal of Cases and the Principle of Legality|231
3|5.3 The Initiation of Prosecution and the Institution of the Court Proceedings|236
2|6 Investigative Competence of the EPPO, the Principle of Non-discrimination, and Extraterritorial Application of Fundamental Constitutional-Law Safeguards ratione personae|239
2|7 Conclusions|242
2|References|243
1|The Legal Framework for the Protection of Fundamental Rights of the Suspect or Accused in Transnational Proceedings Under the EPPO|245
2|1 Introduction|245
2|2 Protection of Fundamental Rights|246
3|2.1 The Right to Interpretation and Translation in Criminal Proceedings|249
3|2.2 The Right to Information and Access to the Case Materials|251
3|2.3 The Right to Access to a Lawyer and the Right to Communicate with and Have Third Persons Informed in Case of Detention|254
3|2.4 The Right to Remain Silent and the Right to be Presumed Innocent|256
3|2.5 The Right to Legal Aid|259
2|3 The Judicial Review of EPPO|260
2|References|262
1|Exchange and Processing of Information Between the European Public Prosecutor’s Office and National Authorities. The Case Management System|263
2|1 A Precedent: The Exchange of Information Between Eurojust and National Authorities|264
2|2 Information Exchange Between National Authorities and the European Public Prosecutor’s Office: Two Perspectives|267
2|3 The Case Management System of the European Public Prosecutor’s Office: General Features|268
3|3.1 The Case Management System in the Commission European Public Prosecutor’s Office Regulation Proposal|268
3|3.2 The Case Management System in the European Public Prosecutor’s Office Regulation|270
3|3.3 Automated Processing of Information Within the Case Management System of the European Public Prosecutor’s Office or in Other Electronic Formats|274
2|4 Interconnection of the Case Management System of the European Public Prosecutor’s Office and National Case Management Systems|275
2|5 Access to Information by the European Delegated Prosecutors|276
2|6 Secure Communications Network|277
2|7 Exchange of Information Between National Authorities and the European Public Prosecutor’s Office in the Regulation on the Establishment of the European Public Prosecutor’s Office|278
3|7.1 Reporting National Authorities and Other Reporting Sources|279
3|7.2 Situations to be Reported and Content of the Report|280
3|7.3 Registration and Verification of the Reported Information|282
3|7.4 Decision Making Process Within the European Prosecutor’s Office|283
3|7.5 Notification to National Authorities of the Decisions Taken by the European Public Prosecutor’s Office|284
3|7.6 Information to Victims or Other Persons of the Decision Taken by the European Public Prosecutor’s Office|285
2|8 Concluding Remarks|287
1|Contents|14
1|About the Contributors|16
1|The Status of Independence of the European Public Prosecutor’s Office and Its Guarantees|20
2|1 Introduction|20
2|2 What Independence for the Future European Public Prosecutor’s Office?|24
2|3 The Guarantees of the Independence of the European Public Prosecutor’s Office in the Regulation of 2017 and in the Pre-legislative Work of the Council|26
3|3.1 The Organizational Structure of the European Public Prosecutor’s Office|26
4|3.1.1 The College|28
4|3.1.2 The Permanent Chambers|29
4|3.1.3 The European Chief Prosecutor and the Deputy Chief Prosecutors|30
4|3.1.4 European Prosecutors|32
4|3.1.5 European Delegated Prosecutors|33
4|3.1.6 The Administrative Director|35
4|3.1.7 Seconded National Experts|35
3|3.2 Regulatory Autonomy of the European Public Prosecutor’s Office|36
3|3.3 Budgetary and Managerial Autonomy of the European Public Prosecutor’s Office|37
2|4 Concluding Remarks: Some Problematic Aspects|38
2|References|41
1|The Material Competence of the European Public Prosecutor’s Office|43
2|1 Introduction|43
2|2 Legal Basis: What the Treaty of the European Union Envisaged for the European Public Prosecutor’s Office|44
2|3 Material Competence of the European Public Prosecutor’s Office: Determination by a Dynamic Reference to the PIF Directive|47
2|4 PIF Directive: Competence Framework for the European Public Prosecutor’s Office. PIF Directive and VAT|48
3|4.1 PIF Directive and VAT|50
2|5 Related Crimes, Including Inextricability and Instrumentality: The Case of Criminal Organisations and the Remaining Cases|53
2|6 The Exercise of the Competence by the European Public Prosecutor’s Office|55
2|7 The Reporting Obligations of the Member States|58
2|8 Conclusions|58
2|References|59
1|The European Public Prosecutor’s Office and Its Coordination with the National Public Prosecutor’s Office: The Model of Complementarity|60
2|1 Introduction|60
2|2 The Principle of Complementarity as the Fountain of Inspiration for an Alternative Model|63
3|2.1 Background|63
3|2.2 The Principle of Complementarity in the Rome Statute of the ICC|64
3|2.3 The Principle of Complementarity as a Parallel Mechanism for an Alternative Model of an EPPO|65
4|2.3.1 The Criterion of Complementarity|65
4|2.3.2 The Situation in Relation to the ICC|67
4|2.3.3 Differences and Problems|67
2|3 The Principle of Complementarity as a Guiding Principle for the Future EPPO’s Work|68
3|3.1 The Role of Complementarity in the EPPO’s Exercise of Its Right of Evocation|69
3|3.2 Complementarity Guiding the Relationship Between the Centralised and the Decentralised Level Within the General Structure of the EPPO|69
2|4 Conclusion: Advantages of implementing the Principle of Complementarity|71
2|References|72
1|Choosing the National Forum in Proceedings Conducted by the EPPO: Who Is to Decide?|75
2|1 Choosing Forum Between Multiple Jurisdictions: Framework and History|75
2|2 EPPO and Jurisdiction|79
2|3 A Jurisdiction Established by Law?|80
2|4 The Rules in the EPPO Proposal|85
2|5 The Rules in the Final Text (and the Rejection of the Principle of European Territoriality)|87
2|6 The New Rules on the Transferring of Proceedings to Another State|91
2|7 Problematic Issues: Understanding the “Focus” of the Criminal Activity|92
2|8 Other Problematic Issues (and the Inadequate System of Judicial Review)|95
2|9 Final Remarks (Can the Defence Have a Say?)|97
2|References|100
3|Further Readings|102
1|The Relationship Between Eurojust and the European Public Prosecutor’s Office|103
2|1 Introduction|104
2|2 Institutional Viewpoint|106
2|3 Practical Aspects|107
3|3.1 Administrative and Managerial Links|108
3|3.2 Operational Links|109
2|4 Other Possible Ways to Establish Links|112
2|5 Final Remarks|114
2|References|116
3|Further Readings|117
1|The Decision to Drop the Case: Res Iudicata or Transfer of Competence?|118
2|1 Preliminary Considerations|119
2|2 The Commission’s Proposal v. the Council’s Proposal: Two Very Different Structures|120
2|3 The Provisions Concerning the Deferral of the Case to National Prosecutors|121
2|4 Provisions Concerning the Dismissal of the Case|124
2|5 Res Iudicata?|125
2|6 Conclusions|128
2|References|129
1|Cross-Border Investigations Under the EPPO Proceedings and the Quest for Balance|131
2|1 Introduction|131
2|2 Cross-Border Investigations|134
3|2.1 Cross-Border Evidence Gathering in the EPPO Regulation: The Assignment System|135
3|2.2 Relationship with Other Mutual Recognition Instruments|137
3|2.3 Article 31.5 of the EPPO Regulation on the Assigned Investigative Measure|138
3|2.4 The Requirement of Judicial Authorization|142
3|2.5 Enforcement of Assigned Measures|143
3|2.6 Cross-Border Investigations by the EPPO and Rules Under the EIO: The Case of the Interception of Communications|144
2|3 Cross-Border Investigations Under the EPPO Regulation and the Right to Legal Assistance|146
3|3.1 Access to a Lawyer in the Collecting of Cross-Border Evidence|147
2|4 Concluding Remarks|150
2|References|150
1|Cross-Border Criminal Evidence and the Future European Public Prosecutor. One Step Back on Mutual Recognition?|154
2|1 Introduction|154
2|2 Admissibility of Cross-Border Evidence Under the System Envisaged by the EPPO Proposal|155
2|3 Regulation 1939/2017: A Flattened Structure for the EPPO|162
2|4 A Flat Organizational Structure Functions Horizontally: One (?) Step Backwards|164
2|5 Cross-Border Investigations: Back to the Model of Legal Assistance|166
2|6 Mutual Legal Assistance: Ahead to the Past? A Comparative Look at the EIO|168
2|7 Admissibility of Cross-Border Evidence Under the EPPO Regulation|170
2|8 Concluding Remarks|174
2|References|175
1|Transactions and “Simplified Procedures” in the Framework of the European Public Prosecutor’s Office. A National Perspective|178
2|1 Introduction|178
2|2 Overview of the Conformidad in Spanish Criminal Procedure|180
2|3 “Simplified Prosecution Procedures” Under the EPPO Regulation|182
3|3.1 The Draft Regulation of the EPPO of 2013|182
3|3.2 The Simplified Procedures Under the EPPO Regulation|185
2|4 Implementation of the EPPO “Simplified Procedures” in Spain|186
2|5 Concluding Remarks|189
2|References|190
1|Protection of Fundamental Rights of the Suspect or Accused in Transnational Proceedings Under the EPPO|191
2|1 Introduction|192
2|2 Structure of the EPPO and Fundamental Rights|193
2|3 Procedural Safeguards in the EPPO Regulation|196
2|4 A Missed Opportunity?|197
2|5 Investigative Measures in EPPO Proceedings|199
2|6 Defence Rights in EPPO Proceedings|202
2|7 Admissibility of Cross-Border Evidence|205
2|8 Concluding Remarks|207
2|References|210
1|Criminal Investigations, Interference with Fundamental Rights and Fair Trial Safeguards in the Proceedings of the European Public Prosecutor’s Office. A Human Rights Law Perspective|212
2|1 Introductory Remarks|212
2|2 The Initiation of a Criminal Inquiry by the European Public Prosecutor’s Office|215
3|2.1 The Initiation of Criminal Investigations and the Right to Be Heard Fairly|215
3|2.2 The Preferment of Charges and Procedural Guarantees in the Investigative Phase: Rights to Information, Legal Assistance and the Privilege Against Self-incrimination|218
2|3 The Distribution of Investigative Competences and the Reallocation of Cases. Repercussions on the Right to a Defence and the Need for Pre-determination of the Competent Forum by the Law|220
2|4 Intrusive Investigations, Interference with Fundamental Rights, and Procedural Safeguards|226
2|5 The Completion of the Pre-trial Inquiry and the Decision on Whether or Not to Bring the Defendants to Court with a Formal Accusation|230
3|5.1 The Decision on Whether or Not to Prosecute the Alleged Offender and the Enactment of a Model of Internal Oversight of the Prosecutorial Authority in Charge of the Investigations|230
3|5.2 The Dismissal of Cases and the Principle of Legality|231
3|5.3 The Initiation of Prosecution and the Institution of the Court Proceedings|236
2|6 Investigative Competence of the EPPO, the Principle of Non-discrimination, and Extraterritorial Application of Fundamental Constitutional-Law Safeguards ratione personae|239
2|7 Conclusions|242
2|References|243
1|The Legal Framework for the Protection of Fundamental Rights of the Suspect or Accused in Transnational Proceedings Under the EPPO|245
2|1 Introduction|245
2|2 Protection of Fundamental Rights|246
3|2.1 The Right to Interpretation and Translation in Criminal Proceedings|249
3|2.2 The Right to Information and Access to the Case Materials|251
3|2.3 The Right to Access to a Lawyer and the Right to Communicate with and Have Third Persons Informed in Case of Detention|254
3|2.4 The Right to Remain Silent and the Right to be Presumed Innocent|256
3|2.5 The Right to Legal Aid|259
2|3 The Judicial Review of EPPO|260
2|References|262
1|Exchange and Processing of Information Between the European Public Prosecutor’s Office and National Authorities. The Case Management System|263
2|1 A Precedent: The Exchange of Information Between Eurojust and National Authorities|264
2|2 Information Exchange Between National Authorities and the European Public Prosecutor’s Office: Two Perspectives|267
2|3 The Case Management System of the European Public Prosecutor’s Office: General Features|268
3|3.1 The Case Management System in the Commission European Public Prosecutor’s Office Regulation Proposal|268
3|3.2 The Case Management System in the European Public Prosecutor’s Office Regulation|270
3|3.3 Automated Processing of Information Within the Case Management System of the European Public Prosecutor’s Office or in Other Electronic Formats|274
2|4 Interconnection of the Case Management System of the European Public Prosecutor’s Office and National Case Management Systems|275
2|5 Access to Information by the European Delegated Prosecutors|276
2|6 Secure Communications Network|277
2|7 Exchange of Information Between National Authorities and the European Public Prosecutor’s Office in the Regulation on the Establishment of the European Public Prosecutor’s Office|278
3|7.1 Reporting National Authorities and Other Reporting Sources|279
3|7.2 Situations to be Reported and Content of the Report|280
3|7.3 Registration and Verification of the Reported Information|282
3|7.4 Decision Making Process Within the European Prosecutor’s Office|283
3|7.5 Notification to National Authorities of the Decisions Taken by the European Public Prosecutor’s Office|284
3|7.6 Information to Victims or Other Persons of the Decision Taken by the European Public Prosecutor’s Office|285
2|8 Concluding Remarks|287