Themis Competition

Semi-Final D

Budapest, 25-28 June 2013

MAGISTRATES’ ETHICS AND DEONTOLOGY

“THE PUBLIC PROSECUTION IN EUROPE”

Italy

Team

Monica Mastrandrea

Luigi Pacifici

Chiara Salamone

Trainer

Ignazio Patrone

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1. The Public Prosecution in Italy

1.1. Introduction

The Italian Public Prosecution Service was first created a few years after the birth of the Italian

State (1861), taking as a model the French Napoleonic system. At that time, it employed a hierarchical

scheme centralised at the national level and under the direct control of the Ministry of Justice.

Since the adoption of the Constitution in 1948, instead, prosecutors have been part of the

judiciary and have been guaranteed the same independence and tenure as judges (both being classified as

“magistrates”, selected by the same competitive process of examinations and able to move from one

function to the other one at their own request).

The inclusion of prosecutors within the same constitutional category as judges conceptualises the

prosecutorial function as ‘judicial’. Indeed, the proper functioning of the judiciary is contingent upon the

prosecution’s effective discharge of its duties, all in support of the adjudicative role of the court. In

essence, those duties involve the investigation of crime, its prosecution at trial and the pursuance of the

public interest in some civil cases. During investigation a prosecutor has the power to exercise control

over those units among the police corps that help and support investigative actions (the so-called

‘judicial police’). In fact he can give orders and directions to the police in the investigation process.

The prosecutor has to be impartial during the preliminary investigation, uncovering both

inculpatory and exculpatory evidence for a given suspect. At the trial stage, the prosecution acts as a

party, but he preserves the duty to find evidence even in favour of the defendant. On the contrary, the

defence is not obliged to provide evidence against the defendant.

At the end of the trial, if the prosecutor is persuaded that the defendant cannot be convicted, he

has to ask his acquittal. Moreover the prosecutor may appeal a defendant’s conviction, as well as he may

seek a reduction of sentence, all in order to ensure that justice is done. But once the appellate process is

over, the prosecutor has no discretion and must execute the sentence pronounced by the court.

Consequently in Italy the public prosecutor is “a part of the trial with the mind of a judge”. For

all these reasons a prominent scholar once described the Italian prosecutor using the oxymoronic term

“impartial party”, that is an inquisitorial figure in adversarial proceedings1. This leads to the prevention

from risks of rash or factious charges. In the end, the presence of an impartial public prosecutor is a

great guarantee of legality for everyone.

In civil cases the Italian prosecutor has the duty to act as a party if some public interest is

involved in the lawsuit. The Public Prosecutor’s Office at the Supreme Court gives judges his opinion

for each case and can also contest every decision of the Courts of Appeal “in the law’s interest”, in order

to provoke a Supreme Court’s statement about law questions.

1 CALAMANDREI, Opere giuridiche, Napoli, 1966, p. 195.

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1.2. The New Accusatorial Code of Criminal Procedure

The current Italian Code of Criminal Procedure was adopted in 1988; compared to the old one,

the new code has a completely different profile, inspired by an adversarial system of criminal procedure.

Investigations are carried out by the prosecutor and police, with the judge intervening only at the

request of the parties. The Code further empowers the defendant and counsel for the crime victim to

conduct private investigations. The judge for preliminary investigations intervenes only in exceptional

cases when the restriction of fundamental rights is involved.

At trial, the parties have the right to present evidence and to cross examine witnesses. However,

the trial judge is not presented with all of the typical information gathered by police and prosecutors

during the investigation (i.e. witness statements). Rather, the judge receives only limited materials

gathered through the investigation - in particular, information that is impossible to reproduce in court,

like wire-tapping evidence and records of police searches - which are then supplemented with evidence

presented in court.

As a consequence of the reform, the new Code distinguishes between the investigation and the

trial in court, based on the assumption that the probative value of evidence is affected by the manner in

which it is collected. Inspired by the adversarial system, the code drafters believed that the best

environment for proving the facts and discovering the truth is a context in which opposing viewpoints

are present. As a consequence, a court verdict must be based solely on evidence collected orally at trial

and subjected to cross-examination.

Despite its accusatorial ambitions, the 1988 Code did retain some features of the traditional

continental model, such as the legality principle, which the drafters incorporated for all parts of criminal

proceedings. According to the Constitution, the prosecutor is obliged to take action in all criminal cases,

no matter how slight the offense. Another inquisitorial feature preserved in the code is the judge’s power

to introduce additional evidence when he cannot decide the case on the evidence submitted at trial.

Moreover, the new Code did not alter the position of prosecutors as members of the judiciary,

thereby maintaining the ‘objective’ conception of the prosecutorial role.

The prosecution’s independence from political power is both explicitly stated in the Constitution

and implied by other provisions. For instance, the Constitutional Court has considered the independence

of prosecutors as a necessary corollary of the legality principle2. Since the decision to prosecute in cases

supported by sufficient evidence is mandatory rather than discretionary, the prosecutor must be left free

to obey law without external interference from any political actor. Further evidence is provided by the

2 Constitutional Court, 15 February 1991, n. 88: “To be implemented properly, the principle of legality, which

demands the repression of any violation of criminal law, requires legality in criminal procedure. Thus, a system like ours,

based on the principle of equal treatment of all citizens before criminal law (…), can only be safeguarded through an

obligation to prosecute. Realising the principle of equality is not, however, fully possible if the body whose action is needed

is dependent on other powers: to guarantee these principles, therefore, the independence of public prosecutors is

indispensable”.

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constitutional provision making prosecutors members of the Supreme Council of the Judiciary

(Consiglio Superiore della Magistratura - C.S.M.), a self-governing institution designed to assure the

effective independence of the judiciary.

Most statutes and administrative rules seem to confirm that the prosecution service is not linked

to the Ministry of Justice. Prosecutors are appointed after a public examination by the Supreme Council

of the Judiciary, which is also competent for all decisions regarding career progress and disciplinary

measures for prosecutors. Moreover, the Minister cannot impart any kind of order or instruction to

prosecutors, nor can he interfere with the exercise of judicial and prosecutorial functions. Instead, the

Minister’s task is to supply the material resources needed for the system to work properly.

1.3. Changing from the Function of Prosecutor to the Function of Judge and viceversa.

A recent reform (2006) has introduced some important restraints on magistrates willing to change

from the functions of judge to the function of prosecutor and viceversa. Before these provisions, there

were no restraints on magistrates wishing to change their role.

On the contrary, the reform has limited this possibility, providing that if a ‘magistrate’ wants to

change function he has to move to a different Region3. Moreover, magistrates cannot change functions

more than four times during their entire career. The magistrate has to exercise the new function for at

least five years before being allowed to change again. For prosecutors it is, however, possible to become

civil judges in the same Court of Appeal’s District, just moving to a different town, and viceversa.

1.4. Internal Organization of the Prosecutor’s Office

Another recent reform (2008) has provided for criminal proceedings to be instituted exclusively

by the Prosecutor heading a single office. This organization highlights the hierarchical role of the Chief

Prosecutor. In this way the legislator has pursued the aim of giving full uniformity to criminal

prosecutions.

The Chief Prosecutor exercises his power either personally or by assigning a case to one or more

prosecutors from the office. The C.S.M. established that the Chief has the power-duty:

- to establish general criteria for his office’s organization (to be send to the C.S.M.);

- to set up working groups;

- to identify types of offences for which the assignment of cases can occur automatically.

The role of individual Deputy-prosecutors has however been enhanced: the law ensures some

margin of autonomy to each one handling the cases assigned to him by the Head of the Office.

The Chief Prosecutor can revoke the assignment of a case only in given circumstances.

3 Note that Italy is divided in twenty Regions, whose territory normally coincides with a single Court of Appeal’s

District.

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After this reform, relations with the media are personally managed by the Chief Prosecutor.

Deputy-Prosecutors are forbidden to issue statements or provide information to the media on the judicial

activity of the office.

1.5. The Prosecutorial Function in Practice

As in all criminal justice systems, there is a difference between what the law provides and what

happens in practice. In fact, mandatory prosecution pursuant to the legality principle is far from absolute

in practice. On a daily basis, prosecution offices have to deal with too many cases, making it impossible

to scrutinise each one. Under these circumstances, it is inevitable that prosecution offices will neither

process all the information nor investigate all of the crimes. Besides, statutory provisions are

progressively incapable of addressing prosecutorial practices, due to the growing complexity of the

system, which has been gradually influenced by external sources of both European and international

origin and by judicial decisions of supranational bodies, such as the European Court of Human Rights.

Despite the legality principle, then, legal provisions are gradually less able to render the system

predictable and homogeneous in its application. The interpretative options have proliferated, and judicial

and prosecutorial activism in legal interpretation is undeniably frequent. For all these reasons, even

though the Constitution prohibits prosecutorial discretion, it is clear that such discretion exists; and

although it is hard to precisely measure its extent, the discretion is undoubtedly quite broad.

Formally, the prosecutor must record every notification of a crime in a specific register, and then

he must investigate that crime, ending the inquiry either with a formal decision to charge the accused or

with a request for dismissal filed with the court. In reality, however, prosecutors often fail to register

many notifications of crimes and they do not take any investigative steps for many registered crimes.

Instead, they wait for the maximum amount of limitation period to elapse and then they file a dismissal

request.

1.6. Reform Perspectives and Political Debates Concerning the Italian Public Prosecutor

Although the Constitutional Court has long held that the prosecution is fully independent from

political bodies, scholarly debate continues to this day. In fact, some scholars and politicians have

strongly criticised the preservation of the prosecutor’s judicial position, which has practical

consequences for criminal proceedings and might violate the equality of arms principle. According to

these critics, judges are structurally more proximate to the prosecutor than to the defendant, so there is a

continuous risk that the judge will be predisposed to rule in favour of the prosecution during the

preliminary investigation and at trial stage.

Other scholars have replied that the Public Prosecutor has more credibility at court not because

he is part of the judiciary, but for his duty to carry out his function in an impartial way and with the

‘judge’s eye’.

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Moreover, critics argue that the myth of mandatory prosecution makes prosecutors unaccountable

for their practical discretion in case decision-making. Paradoxically, the legality principle has been used

to shield prosecutors from any political responsibility, making them independent but not accountable for

most of their choices. In the past few years, the most influential association of Italian criminal lawyers,

the “Unione delle Camere Penali”, has been fighting at political and social levels for the separation of

the prosecutor from the judiciary.

However, other scholars and politicians believe that separating the prosecutor from the judiciary

could endanger the independence of the first one, vesting the political branches with too much power.

Precisely, the executive could end up controlling the most powerful instrument in the administration of

criminal justice.

To achieve a satisfactory compromise between prosecutorial independence and accountability,

many scholars have supported the idea of ‘priority criteria’, a set of guidelines, promulgated by the

Supreme Council of the Judiciary, establishing criteria to control prosecutorial discretion, providing a

level of consistency and predictability in prosecutorial choices.

1.7. Deontology in the Prosecutorial Function

A prominent scholar asserted that in a criminal proceeding the most difficult function is that of

the public prosecutor, because he has to be impartial and detached as a judge and, at the same time,

partial and passionate as a counsel4.

The inner ambiguity of the prosecutor’s figure causes relevant deontological questions. In fact

the public prosecutor has to support the charge during the trial maintaining an impartial behaviour and

without personalising his public function. In fact he must be detached in order to pursue not the

conviction of the accused at any cost but only the law’s interest. That is very complex for a prosecutor

because he often receives attacks from counsels, from journalists and from the same accused. So he

sometimes works in a very hostile context in which he must remain calm and interested only in justice.

In fact his objective role imposes on prosecutor not to react against these attacks, because he has to

preserve his fairness. That causes two important consequences: 1) when the attack is unjust or

persecutory, the public prosecutor must be protected by the Supreme Council of the Judiciary, in order to

defend the dignity of the judicial power; 2) according to the Supreme Court of Cassation, the right of

criticism is considered in a more restrictive way when it strikes a magistrate (judge or prosecutor),

because he is a person who cannot answer to journalistic attacks (Court of Cassation, no. 25138/2007).

As regards prosecutor’s duties, they can be divided into three typologies:

1) duties that, if violated, produce criminal liability: for example a public prosecutor cannot

publicise a document under secret (article 326, criminal code);

4 CALAMANDREI, Elogio dei giudici scritto da un avvocato, Milano, 1959, p. 59.

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2) duties that, if violated, cause disciplinary liability: for example when a deputy prosecutor

keeps relations with media about an assigned case, breaching the article 5 of law no. 106/2006, which

imposes that only the Chief Prosecutor can issue statements or provide information to the media on the

judicial activity of the office;

3) duties that are not assisted by a legal sanction, but that must be respected according to a code

of conduct: for instance, because of his impartial role, the public prosecutor must follow a lifestyle based

on reserve and equilibrium in order to avoid anything that could lessen his authority; in other words, he

has to be as much reliable as a judge5.

2. The Tasks and Powers of the Public Prosecutor in the EU Member States: an Introduction

Generally, in all EU Member States, public prosecutors are authorities who, on behalf of society

and in the public interest, ensure the application of the criminal law, taking into account both the rights

of the individual and the necessary effectiveness of the criminal justice system, which the public

prosecutor must guarantee.

On 6 October 2000, the Committee of Ministers of the Council of Europe adopted the

Recommendation (2000)19 on the role of public prosecution in the criminal justice system to encourage

the definition of common principles for public prosecutors in EU member States and also to create an

international co-operation in criminal matters.

Briefly, about the tasks and the duties of public prosecutors, it is possible to observe that in all

criminal justice systems they decide whether to initiate or continue prosecutions; conduct prosecutions

before the courts; may appeal or conduct appeals concerning all or some court decisions. At the same

time, in certain criminal justice systems, public prosecutors also implement national crime policy while

adapting it, where appropriate, to regional and local circumstances; conduct, direct or supervise

investigations; ensure that victims are effectively assisted; decide on alternatives to prosecution and

supervise the execution of court decisions.

Public prosecutors must be guided in the performance of their duties by public interest; they must

observe two essential requirements concerning the rights of the individual and the necessary

effectiveness of the criminal justice system too.

2.1. The Experience of Spain, France and Germany

2.1.1. The Role of the Public Prosecutor in Court in Spain

5 For further references on the Italian Public Minister see CAIANELLO, “The Italian Public Prosecutor: An

Inquisitorial Figure in Adversarial Proceedings?”, in LUNA, WADE (eds.), Transnational Perspectives on Prosecutorial

Power, Oxford University Press, 2011; SCACCIANOCE, “The Principle of Mandatory Criminal Prosecution and the

Independence of Public Prosecutor in the Italian Criminal Justice System”, in Electronic Review of the International

Association of Penal Law, 2010; MANCUSO, “La riorganizzazione dell’Ufficio del Pubblico Ministero alla luce della riforma

ordinamentale e della normazione secondaria del Consiglio Superiore della Magistratura”, C.S.M. lecture, 2008; PIZZORUSSO,

“Il Pubblico ministero e la politica”, lecture C.S.M. 2003.

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In Spanish law the prosecution service does not have the monopoly over prosecuting crime and

the plurality of procedures and the different roles played by the parties intervening in them, make it

rather complicated to describe the general role of the prosecutor in court proceedings.

However, the action of the prosecution service is governed by two main principles, which

significantly mark the role of the service in all criminal procedures: the principle of legality and the

principle of impartiality.

The principle of legality means that the prosecution service will act in accordance with the

Constitution, the law and other regulations in force and it does not allow the prosecution service to

charge a suspect with a less serious offence than the one he should be charged with in view of the

relevant facts. Legality is central in the role of the prosecutor in a criminal trial.

The principle of opportunity does not apply, except in proceedings involving criminal

responsibility of juveniles.

About the role of courts, it is possible to observe that in criminal trials the judge is bound to the

classification proposed by the public prosecutor. Exceptionally, if the court considers an offence

wrongly classified, it can offer the party the possibility of changing the classification. In this case it is

necessary that the party accepts the change, otherwise the court may not modify what has been

criminally classified. The reason for this limit is the need to reconcile the roles of the people involved in

the proceedings and the necessity to respect the accusatory principle.

It is also worth underlining that there can be a public accusation, represented by the prosecution

service, and a private or people’s accusation. In the latter case, when there is another accusation, the

court is conditioned in its decision by the maximum penalty requested by any of the accusatory parties

that may have intervened, not only by the prosecution service.

The prosecutor makes an opening speech whereby he sets out the facts that he considers proven

during the trial, their legal classification, the participation of the defendants in them and the possible

civil liability that may derive from the commission of the criminal act.

2.1.2. The Role of Public Prosecutor in Court in France.

The most important mission performed by the public prosecutor in France consists in defending

the society’s general interests. Therefore, his task is to apply the law on behalf of society and in the

name of the good administration of the justice.

Furthermore, even if the mission of judges is only to make a decision on the case submitted, the

prosecutors have proper responsibilities in discovering the truth. For this purpose the public prosecutor

has strong powers over the judiciary police and can instruct an investigating judge who may only

investigate in accordance with the submission made by this district prosecutor, who also controls judicial

police especially as regards the research of evidence.

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For what concerns individual freedom, the public prosecutor has substantial powers which have

been recognised by the Constitutional council, for instance in the area of the detention of foreigners.

Also in France, the public prosecutor must attend trials and is represented before each criminal

court; every decision is read in his presence, since he ensures the enforcement of court decisions. The

duties of the public prosecutor attached to the investigating chamber are performed by the General

Prosecutor or by his Deputies; on the other hand, the duties of the court office are performed by a clerk

of the appeal court.

If the prosecutor does not attend the trial, the decision will be declared void; anyway it is

possible to replace the prosecutor during the hearing as a result of the principle of indivisibility, but the

seat of the public prosecutor cannot stay free.

During hearings, the prosecutor performs an essential role. At first, he submits his oral requests.

Through this submission, the prosecutor, who defends society and public order, will speak his mind in

an objective and impartial manner. Actually, these submissions contain a proposal for penalty to the

court. This proposal is never binding for the judge, but is the logical consequence of the submissions

presented before. This proposal takes into account the gravity of the facts, the behaviour and personality

of the offender and the existence of aggravating circumstances. Furthermore, the prosecutor will have to

give an opinion on how to deal with interdictions or complementary penalties.

Although the public prosecutor cannot generally change the charge, the court can do it under

some conditions when this seems necessary during the court session. If the facts that appeared during the

hearing were contained in the charge, the judges must change the qualification and invite the offender to

give some explanations about it. If a new element appears during the hearing, the judges can change the

qualification but the offender has to accept a discussion on this element. If the facts are not in the charge

the judges must use the immediate hearing proceedings.

With reference to the relations between the public prosecutor and political powers, the

independence of the justice system is assured by the constitutional and statutory dispositions.

Over the last fourteen years more or less, many controversies have involved the public

prosecution services. As an example of good practice, some commentators referred to the Italian model

with its very independent prosecutor. Others preferred to keep a hierarchical link with the Minister of

Justice, as long as some guarantees are given to him.

2.1.3. The Role of the Public Prosecutor in Court in Germany

In Germany, the office of the public prosecutor was introduced as a safeguard for judicial

independence and objectivity. The function of representing the State’s interest in bringing criminals to

justice replaced the originally all-encompassing role of the inquisitorial judge, and the public prosecutor

inherited many of the broad powers of the latter. The separation between judge and prosecutor remained

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incomplete throughout the 19th and the most part of the 20th century. In that period, the public

prosecutor shared power over the pre-trial process with the German version of the juge d’instruction.

However, the office of the investigating judge was abolished altogether in 1975. Since then, the

public prosecutor has been the undisputed master of the pre-trial process in accordance with the law. It is

the prosecutor’s sole responsibility to collect and evaluate evidence with a view towards deciding

whether to file formal charges against a suspect or not. The law conceives the public prosecutor as an

objective and impartial official. The German Code of Criminal Procedure (C.C.P.) requires the public

prosecutor to investigate incriminating as well as exonerating circumstances and to secure evidence. The

prosecutor’s objective role as a law officer continues even through the trial and beyond it. The

prosecutor can move for acquittal at the end of the trial and he can even file an appeal in favour of the

accused. In practice he often turns into an advocate seeking conviction after he has filed a formal

accusation.

The C.C.P. does not usually speak of the public prosecutor as an individual but of the public

prosecutor’s office, that is represented by its individual agents. Individual prosecutors are thus

considered as agents of an impersonal, hierarchically organised agency and it is this agency that makes

decisions and performs official acts in the criminal process.

Also in Germany, in accordance with the accusatory principle, criminal court proceedings cannot

be initiated without a formal accusation having been filed by the prosecutor. Once the prosecutor has

filed a formal accusation and the court has accepted it, the accusation cannot be withdrawn. Even if the

prosecutor who represents the State at trial comes to the conclusion that the charges are unfounded he

cannot simply withdraw the case from the jurisdiction of the court. If this happens, he is obliged to ask

the court to acquit the defendant, but the court can nevertheless convict him if it evaluates the evidence

differently. If the court has issued a penal order proposed by the prosecutor, and the defendant has

appealed, the prosecutor can then withdraw the charges.

The formal accusation binds the court and determines further proceedings only with respect to

the factual allegations. The prosecutor can add new charges at trial, but this can however be done only

with the defendant’s consent and the court has discretion whether to accept the additional charges. The

court is free in its legal evaluation of the facts presented by the prosecutor.

Court proceedings are dominated by the presiding judge, who determines what evidence is

presented in court and interrogates witnesses and experts. The prosecution as well as the defence have

the right to request the calling of additional witnesses. Having submitted a list of witnesses it deemed

relevant along with the formal accusation, the prosecution rarely makes use of this right. Although the

law provides for the option of cross-examination of witnesses by the prosecutor and defence counsel,

this option is never used in practice. Most of the questioning is usually done by the presiding judge and

the prosecutor tends to remain silent or to ask just a few additional questions in order to clarify points

particularly relevant to the prosecution. The prosecutor is asked by the presiding judge to present

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evidence and request a judgement, when the taking of evidence has come to the conclusion. The

prosecutor is obliged to make a concluding statement and to specify the charges as well as the

recommended judgement. The court is not bound in any way by the prosecutor’s request.

3. The Uniform Idea of the Functions, Powers and Duties of Public Prosecutors in EU: the

Recommendation (2000)19

After this short analysis of the public prosecutor’s countries profiles, between differences and

analogies, it is necessary to underline that the Committee of Ministers of the Council of Europe adopted

on 6 October 2000 the Recommendation (2000)19 on the role of public prosecution in the criminal

justice system. In harmony with the recommendation, EU States must guarantee that public prosecutors

are able to execute their professional duties and responsibilities under adequate legal and organisational

conditions, since they can perform their duties and properly discharge their professional responsibilities

only if they have the appropriate status, organisational back-up and resources.

In application of article 10 of the European Convention on Human Rights, States must also

ensure that public prosecutors have an effective right to freedom of expression, belief, association and

assembly. Public prosecutors should have the right to take part in public discussion of matters

concerning law, administration of justice and promotion and protection of human rights. A limit to the

rights mentioned can be imposed only by law, if necessary to preserve the constitutional position of the

public prosecutors.

About the relationship between public prosecutors and the executive and legislative powers, in

accordance with the Recommendation, EU States must ensure that public prosecutors are able to

perform their professional duties and responsibilities without interference. In other words, public

prosecutors must enjoy independence not only from any other authority, whether executive or

legislative, but also from economic forces and local political authorities, as to be able to exercise their

function freely. These requirements go hand in hand with the need for transparency.

In harmony with the principle of the separation of powers, public prosecutors should not interfere

with the competence of the legislative and the executive powers. Also in systems where the public

prosecutor is subordinate to the executive authority, States should take effective measures to guarantee

that the nature and the scope of the powers of the government with respect to the public prosecution are

established by law and the government exercises its powers in a transparent way and in accordance with

law. At the same time, where the government has the power to give instructions to prosecute a specific

case, such instructions must be assisted by adequate guarantees of transparency, equity and respect of

national law. However, public prosecutors remain free to submit to the court any legal arguments of their

choice and instructions not to prosecute in a specific case should, in principle, be prohibited. In countries

where the public prosecution is independent of the government, States have to guarantee that the nature

and the scope of the independence of the public prosecution is established by law.

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About the relationship between public prosecutors and court judges, although they both are part

of the same legal system, public prosecutors are not judges and the EU States have to ensure that the

legal status, the competencies and the procedural role of public prosecutors are established by law so

that there can be no legitimate doubt about the independence and impartiality of the court judges. So, the

mutual dealings must be characterised by respect, objectivity and observance of procedural

requirements.

Public prosecutors must be objective and fair during court proceedings. In particular, they should

ensure that the court is provided with all relevant facts and legal arguments necessary for the fair

administration of justice. This final recommendation concerns the need for objectivity on the part of

public prosecutors and for transparency in their dealings with judges: so, the first priority for ensuring

transparency must be the communication of all relevant facts and arguments.

As a necessary corollary to the safeguards enjoyed by the public prosecutor in the performance of

his functions, he must have certain duties towards those who come into contact with the legal system

whether as suspects, witnesses or victims of crime. In the performance of their duties, public prosecutors

should carry out their functions fairly, impartially and objectively. So, public prosecutors have to ensure

equality before law and make themselves aware of all relevant circumstances including those affecting

the suspect, irrespective of whether they are to the latter’s advantage or disadvantage, and they should

not initiate or continue prosecution when an impartial investigation shows the charge to be unfounded.

Public prosecutors should in particular demonstrate high standards of decision-making and

professional conduct. In this way, EU States should ensure that, in carrying out their duties, public

prosecutors are bound by “codes of conduct”, that are not formal codes, but rather flexible sets of

prescriptions concerning the approach to be adopted by public prosecutors, clearly aimed at delimiting

what is and is not acceptable in their professional conduct.

Finally, ensuring that citizens are equal before the law and that the criminal justice system

functions efficiently demands a certain level of co-ordination and an effort to achieve consistency,

extending beyond the handling of individual cases. These requirements are even more pertinent in

systems where the public prosecutor is an independent authority or enjoys considerable autonomy. So,

with a view of promoting fair, consistent and efficient activity of public prosecutors, EU States should

seek to give prime consideration to hierarchical methods of organisation; define general guidelines for

the implementation of criminal policy and general principles and criteria, in order to avoid arbitrary

decision-making.

4. The Public Prosecutor in the ECHR Case-Law: the Strasbourg Perspective

The ECHR case-law on the public prosecutors is situated at the crossroads of the domestic

systems we have gone through so far, even if, it is worth noting, there is no express mentioning of

prosecutors in the text of the Convention.

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Leaving aside the judgements dealing with the issue of the effectiveness of the investigations

carried out by public prosecutors, which mostly involve the question of the participation in the fulfilment

of the positive obligations of State regarding articles 2 and 36, a question of primary importance is

whether or not the public prosecutor falls within the definition of “judge or other officer authorised by

law to exercise judicial power” (un juge ou un autre magistrat habilité par la loi à exercer des fonctions

judiciaires in the French version) in art. 5 § 3 of the Convention, that states that everyone arrested or

detained shall be brought promptly before such an authority.

In Strasbourg case-law independence from the executive power and impartiality have always

been the key features in this respect. In the fundamental case Schiesser v. Switzerland, no. 7710/76, 4

December 1979 (§§ 27-38)7, the Court, resorting to literal, systematic and teleological criteria, considers

the Swiss District Attorney as a judicial authority in the sense provided by art. 5 § 3, since he acted

independently and impartially in the case under review, because he intervened exclusively in his

capacity as an investigating authority (and not with prosecuting functions) and he took the decision on

the applicant’s freedom in complete independence, provided he did not receive any order or instruction

on the case8. This means that independence from executive power and impartiality, that is the feature of

indifference and equidistance from the parties and the interests at stake9, attributes expressly provided

only for the judge (art. 6 § 1), also characterise the public prosecutor who, performing a ‘judicial’

function, decides over personal liberty.

The need for impartiality has been reiterated, under different visual angles, in several cases: for

instance in Piersack v. Belgium, no. 8692/79, 1 October 1982, §§ 30-32, where the Court deals with the

controversial issue of change of functions between judges and public prosecutors and holds that,

although the appearance of impartiality has to be protected, it would be excessive to maintain that

former judicial officers in the public prosecutor’s department are unable to sit on the bench in every case

that had been examined initially by that department, even though they had never dealt with the case

themselves, both because so radical a solution would lead to an upheaval in the judicial system of

several Contracting States where transfers from one of those offices to the other are a frequent

occurrence (i.e. Italy) and because the mere fact that a judge was once a member of the public

6 See for instance Grand Chamber, Ramsahai and others v. The Netherlands, no. 52391/99, 10 November 2005, §§

321-357; Caloc v. France, no. 33951/96, 20 July 2000, §§ 87-92; GC, İlhan v. Turkey, no. 22277/93, 27 June 2000; Selmouni

v. France, no. 25803/94, 28 July 1999, § 87. All legal references are intended to the European Convention for the Protection

of Human Rights and Fundamental Freedoms. 7 See also the more recent Pantea v. Romania, no. 33343/96, 3 June 2003, §§ 232-243.

8 This conclusion was reached despite it was contended that he could not provide the necessary guarantees of

independence, since he acts in certain cases as a prosecuting authority and he is subordinate to the Public Prosecutor’s Office

and, through that Office, to the Department of Justice and the Government of the Canton. In fact, the Court never examines

whether domestic systems really provide for an impartial and independent public prosecutor when the latter is entrusted with

the control of the legality of detention, limiting itself to a revision involving the specific circumstances of the case. The very

same attitude has always been shown when analysing the issue of the violation of art. 6 § 1, with the Court pointing out that

its own task is not to review the relevant domestic law and practice in abstracto, but to determine whether the manner in

which they were applied gave rise to a violation of the Convention provisions in the case concerned (Batsanina v. Russia, no.

3932/02, 26 May 2009, §§ 20-28). 9 Sometimes referred to as “independence from the parties”.

14

prosecutor’s department is not a reason for fearing that he lacks impartiality; or in De Jong, Baljet and

Van den Brink v. The Netherlands, nos. 8805/79, 8806/79 and 9242/81, 22 May 1984, §§ 49-50, where it

is stated that the representative of the public minister cannot be considered as an authority exercising

judicial functions in the sense of art. 5 § 3 if he could be called to perform a prosecuting function, thus

becoming a committed party to any criminal proceedings subsequently brought against the individual on

whose detention he was deciding prior to referral for trial10

.

As for the character of independence, the Court is confronted again with the issue whether an

“officer” can be said to exercise “judicial power” in Niedbala v. Poland, no. 27915/95, 4 July 2000, §§

48-57 and in Pantea v. Romania, no. 33343/96, 3 June 2003, §§ 232-238, where it is stated that public

prosecutors cannot be regarded as judicial officers in the sense of art. 5 § 3 if they are subordinate to the

Prosecutor General, who at the same time carries out the function of the Minister of Justice and so

belongs to the executive branch of the Government (as in Poland) or act as members of the Prosecutor-

General’s Department, subordinate firstly to the Prosecutor-General and then to the Minister of Justice

(as in Romania)11

.

A complete analysis of the issue of the independence of the public prosecutor from the executive

power, when confronted with the habeas corpus, was carried on in the debated case Moulin v. France,

no. 37104/06, 23 November 2010, §§ 53-6212

, that reaches similar conclusions to those already reached

in Grand Chamber, Medvedyev and others v. France, no. 3394/03, 29 March 2010, §§ 123-12413

. The

Court holds that magistrats du parquet cannot be considered as judicial authority, because, even if the

magistrats du ministère public are part of the ordre judiciaire, they undergo a different regime in

comparison with the magistrats du siege (judges) and they do not have the very characteristics and

powers of judicial authority. Most of all, public prosecutors are not independent, because they are under

the hierarchical power of the garde des sceaux (Minister of Justice), who is a member of the

Government and thus of the executive power; they are not immovable, whilst judges are, according to

art. 64 of the Constitution; they are under the direction and control of their superior inside the office of

the Parquet (according to art. 33 of the criminal procedure code, they have to submit written requests in

10

See also Assenov and others v. Bulgaria, no. 24760/94, 28 October 1998, §§ 146-150; Pantea v. Romania, cit., §§

232-238; Plenary, Huber v. Switzerland, no. 12794/87, 23 October 1990; Brincat v. Italy, no. 13867/88, 26 November 1992

(regarding the Italian “Pubblico Ministero” in the old Code of Criminal Procedure). 11

Similarly, in Guja v. Moldova, no. 14277/04, 12 February 2008, §§ 85-91, the Grand Chamber, dealing with a

letter sent by a member of Parliament to the Prosecutor General’s Office regarding investigations against police officers,

remarks that in a democratic society both the courts and the investigation authorities must remain free from political pressure,

also because it is in the public interest to maintain confidence in the independence and political neutrality of the prosecuting

authorities of a State. 12

See BALSAMO, TRIZZINO, “Il rapporto tra indipendenza del pubblico ministero e tutela della libertà personale nella

giurisprudenza della Corte europea dei diritti dell'uomo. Nota a Corte europea diritti uomo , 23/11/2010, n. 37104, sez. V”, in

Cassazione penale, 2011, 3, 1226 and NEGLIA, “La sentenza Moulin della Corte europea dei diritti dell’uomo e la discussa

posizione del pubblico ministero nel sistema francese”, in Diritto pubblico comparato ed europeo, 2012, 1. 13

In the Medvedyev case the GC held that the judicial officer in the sense of art. 5 § 3 must offer the requisite

guarantees of independence from the executive and the parties, which precludes his subsequent intervention in criminal

proceedings on behalf of the prosecuting authority, although, in comparison with the Fifth Section judgement in the same

case (no. 3394/03, 10 July 2008) it does not really question the inclusion of the magistrats du parquet in the broader concept

of ‘judicial authority’.

15

accordance with the instructions given according to art. 36, 37 e 44 of the same code, even if they are

free to make oral observations for the sake of justice)14

.

The issue of independence and impartiality of prosecutors is analysed, from a different visual

angle, in Zlínsat, spol. s r.o. v. Bulgaria, no. 57785/00, 15 June 2006, §§ 73-85, where the Court held

that the Sofia City Prosecutor’s Office (who had ordered the suspension of the performance of a

privatisation contract, in the absence of legal remedies) cannot be regarded as a tribunal within the

meaning of art. 6 § 1 on the fair trial, since, although prosecutors are independent of the executive and

enjoy the same tenure and immunities as do judges, they do not have to follow substantive and

procedural rules, which is an essential characteristic exhibited by judicial procedures. In the Court’s

opinion, the mere fact that the prosecutors act as guardians of the public interest cannot be regarded as

conferring on them a judicial status or the status of independent and impartial actors15

.

Turning to civil law, the role of the public prosecutor outside the criminal system is widely

analysed in the case Batsanina v. Russia, no. 3932/02, 26 May 2009, §§ 12, 15-17, 20-28. Going through

the most relevant Council of Europe documents on the matter16

, the Court maintains that this role must

be displayed in accordance with the following principles: the participation of the prosecutors in the civil

and administrative sectors must be exceptional; the intervention of the prosecutor is subsidiary and can

only be accepted when the objective of this procedure cannot or can hardly be ensured otherwise; the

participation of the prosecutor in the civil and administrative sectors must be special and must always

have a well-founded, recognisable aim; prosecutors can always be entitled to intervene to defend the

interest of the State or the public interest (i.e. in cases of protection of the environment, insolvency etc.)

or to protect human rights of disadvantaged groups of society unable to exercise their rights or to ensure

legality or harmonisation of jurisdiction of courts (i.e. special remedies against final court decisions in

the best interest of law); prosecutors should not discriminate among persons when protecting their rights

and should only intervene for well-grounded reasons; prosecutors should have no decision-making

powers outside the criminal field or be given more rights than other parties before courts (principle of

equality of arms)17

.

14

The Court also admits that the relationship between the Minister of Justice and the public prosecutor office is a

controversial issue in France, but refrains from taking a position on the matter, also because it is free to develop autonomous

notions inside its case-law, for the purpose of the application of the ECHR provisions and also, as the reviewers pointed out,

in order not to influence the on-going internal debate on the topic at the domestic level. Anyway, the Court’s conclusion was

promptly followed by the Cour de Cassation in judgement no. 7177, 15 December 2010 (case Creissen). 15

A similar conclusion was upheld in GC, Sanoma Uitgevers B.V. v. the Netherlands, no. 38224/03, 14 September

2010 (case regarding an order of disclosure and hence the protection of journalistic sources), since in procedural terms the

prosecutor is a ‘party’ defending interests potentially incompatible with those of the private party and could hardly be seen as

objective and impartial so as to make the necessary assessment of the various competing interests. 16

Parliamentary Assembly’s Resolution 1604 (2003) on the Role of the Public Prosecutor’s Office in a Democratic

Society Governed by the Rule of Law; Opinion no. 3 (2008) adopted by the Consultative Council of European Prosecutors;

Venice Commission (European Commission for Democracy through Law), 63rd plenary session - 10-11 June 2005, Opinion

on the Prosecutor’s Offices Act. 17

In this perspective, the Court implicitly maintains that the Russian Prosecutor’s Offices Act as in force at the

material time provided, entitling the prosecutor’s office (Prokuratura) to generally institute civil proceedings, might prove

16

Again on the equality of arms, in the case Martinie v. France, 12 April 2006, §§ 50-55, the

Grand Chamber maintained that the mere presence of the prosecutor or comparable officer at the courts’

deliberations, be it ‘active’ or ‘passive’, is deemed to be a violation of art. 6 § 1 of the Convention, since

a prosecutor or comparable officer undertaking the status of a procedural plaintiff becomes in effect the

ally or opponent of one of the parties, thus turning capable of creating a feeling or appearance of

inequality in respect of one of the parties. Similarly, in Lobo Machado v. Portugal, no. 15764/89, 20

February 1996, §§ 24-32, the Grand Chamber holds that the presence of a representative of the public

minister (the Portuguese Deputy Attorney-General) at the Supreme Court deliberations, with the duty to

submit written opinions, constitutes a breach of ar. 6 § 1, since, although objective (super partes) and

reasoned in law, these opinions are nevertheless intended to advise and accordingly influence the

Court18

.

A final reference is due, in picturing the ‘Strasbourg statute’ of the public prosecutor, to the issue

of the protection of the public prosecutors’ reputation, discussed in Lešník v. Slovakia, no. 35640/97, 11

March 2003, § 53-65 (complaint of violation of art. 10 on freedom of expression by a State prosecuting

an individual who accused a public prosecutor of unlawful acts by two letters later published on a

newspaper) and in Nikula v. Finland, no. 31611/96, 21 March 2002 (about lawyers’ right to criticise

public prosecutors’ determinations). In both cases the Court reiterates that it is in the general interest that

public prosecutor enjoy public confidence, so that it may be necessary for the State to protect them from

accusations that are unfounded19

.

In conclusion, even if the European Convention on Human Rights does not directly deal with

judicial organisation issues, the Strasbourg Court has provided an important contribution, in the last

twenty years, for the definition of the figure and the role of the public prosecutor or, better, to focus the

minimum common features of the ‘European statute of the public prosecutor’20

. An independent and

impartial public officer acting for the protection of public interest who, although clearly distinguished

from the judge, certainly is “part of the judicial machinery in the broader sense of this term” (Lešník

case, § 54) and has to share the protection and the guarantees enjoyed by judges sitting in the bench.

4.1. The European Court of Justice Case-Law on Public Prosecutors

contrary to the Council of Europe rules and, hence, to art. 6 § 1 of the Convention; nonetheless it did not consider the Russian

Federation liable, since there was no ‘actual’ breach in the case under review. 18

See also Court (Plenary), Borgers v. Belgium, no. 12005/86, 30 October 1991, §§ 24-29. On the contrary, in

Thorgeir Thorgeirson v. Iceland, no. 13778/88, 25 June 1992, the Court implicitly states that the absence of the public

prosecutor in crucial criminal court hearings, for instance when evidence are submitted and witnesses heard, may give rise to

doubt about the court’s impartiality, since the judges sitting in the bench might called upon to conduct investigations into the

merits of the case or to assume functions which might have been fulfilled by the prosecutor had he been present. 19

It is worth noting that the Court makes references to the need to strike the right balance between the various

interests involved, but does not recall the need to maintain “the authority and impartiality of the judiciary” mentioned in

article 10. 20

See PATRONE, “Il diritto ad un Tribunale indipendente e imparziale nella giurisprudenza CEDU. Riflessi sul ruolo

del Pubblico Ministero”, on http://www.europeanrights.eu/index.php?funzione=S&op=5&id=378.

17

In this context, a hint is due to the European Court of Justice case-law.

Although EU has no competence over the judiciary and its statute, also the Luxembourg Court

has sometimes dealt with the role of public prosecutor, considering him, to a certain extent, as a judicial

authority. So, for instance, in joined cases Hüseyin Gözütok (C-187/01) and Klaus Brügge (C-385/01),

11 February 2003, §§ 25-48, where it stated that the ne bis in idem principle, laid down in Article 54 of

the Convention implementing the Schengen Agreement of 14 June 1985, also applies to procedures

whereby further prosecution is barred, such as those by which the Public Prosecutor of a Member State

discontinues criminal proceedings brought in that State, without the involvement of a court, once the

accused has fulfilled certain obligations and, in particular, has paid a certain sum of money determined

by the Public Prosecutor.

On the other hand, it is worth noting that the public prosecutor is not entitled to refer preliminary

questions to the Court of Justice, since he is not considered as “a body required to give a ruling in

complete independence in proceedings which are intended to result in a judicial decision” and so cannot

be regarded as a “court or tribunal” within the meaning of the present article 267 of the Treaty on the

Functioning of the European Union (Criminal proceedings against X, joined cases C-74/95 and C-

129/95, 12 December 1996, §§ 17-20 and Walter Schmid, C-516/99, 30 May 2002, §§ 34-44, where the

Luxembourg Court also recalls the elements that in its established case-law have to be taken into account

to determine whether a body making a reference is a court or tribunal for the purposes of the

aforementioned art. 267, that is whether the body is established by law, whether it is permanent, whether

its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and

whether it is independent).

5. The European Public Prosecutor: a Single Prosecutor’s Office for European Frauds

As to Article 86 § 1 of the Treaty on the Functioning of the European Union, “In order to combat

crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in

accordance with a special legislative procedure, may establish a European Public Prosecutor’s Office

from Eurojust”. This new Office would be the first European judicial institutions permanently

established in the Member States; it “shall be responsible for investigating, prosecuting and bringing to

judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences

against the Union’s financial interests, as determined by the regulation provided for in paragraph 1. It

shall exercise the functions of prosecutor in the competent courts of the Member States in relation to

such offences” (Article 86 § 2 TFEU). Of course, the establishment of this brand-new institution already

aroused and will arouse in the near future a large debate over its features, powers, duties and means of

action21

.

21

A list of the main documents concerning the European Public Prosecutors Office is available on the official

webpage http://ec.europa.eu/anti_fraud/about-us/legal-framework/green_paper/index_en.htm.

18

The Commission conducted in 2000 a preparatory study in this area, known as Corpus Iuris, and

then took the process further by adopting in 2001 the “Green Paper on criminal-law protection of the

financial interests of the Community and the establishment of a European Prosecutor”, thus offering a

basis for consultation. Waiting for the Commission’s Proposal of a Council Regulation (which could be

published in these days22

) we can use the preparatory work that has been done before.

The 2001 Green Paper was based on the idea that the integration of the investigation and

prosecution functions is necessary to enhance and strengthen the protection of Union’s (i.e. taxpayers’)

financial interests; the establishment of the European Public Prosecutor (hereafter EPP) should help to

overcome most difficulties experienced by traditional forms of international cooperation in criminal

matters, by providing an interface between the Community and the national judicial authorities.

The overall architecture of the Prosecution Office would be based on a division of tasks between

a chief European Public Prosecutor, some central Deputy Prosecutors and Delegated Prosecutors, who

would be integrated into the national justice systems and would actually bring offenders to trial but

would be under the hierarchical control of the Chief Prosecutor.

As for his status, the EPP would be independent and accountable. He would enjoy independence

and would not seek or take instructions in performing his duties from Member States or any institution,

agency or office of the Union. He should be appointed by the Council acting by majority, on a proposal

from the Commission, and with the assent of Parliament. The Prosecutor’s term of office should be non-

renewable. The competence of the EPPO should be limited, in principle, over offences affecting the

financial interests of the Union, the so called PIF crimes23

.

In order to operate properly, the European Public Prosecutor also needs to have a procedural

framework that is, in accordance with the principles of subsidiarity and effectiveness, a common set of

European Rules of Procedure.

As for the outset of the prosecution, it should be made possible for the EPP to receive

information or a referral, whether mandatory (i.e. from Community and national authorities) or

discretionary (i.e. from any natural or legal person), regarding any fact potentially constituting one of the

predefined PIF offences. As for investigation measures, the EPP would have access to coercive measures

defined at national level and a mutual recognition mechanism should be set. Community investigation

measures at the European Public Prosecutor’s discretion would be collecting or seizing information or

hearing and questioning persons, whereas other measures (i.e. arrest warrant, probation order or custody

22

The present paper was last revised on May 30th 2013. 23

There is already substantial agreement among Member States on the nucleus of a special criminal law in this field.

The provisions on substantive criminal law of the Brussels Convention of 26 July 1995 (so-called PIF Convention) on the

protection of the financial interests of the European Communities and its additional protocols, which have been incorporated

first in the proposal for a directive of 23 May 2001 and then in the proposal for a directive of 11 July 2012, are a point of

reference for defining the offences which might fall within the jurisdiction of the EPP: fraud, corruption and money-

laundering. Other offences connected with the protection of the Community’s financial interests might be: market-rigging,

conspiracy, abuse of office and disclosure of secrets pertaining to one’s office. As for the penalties, they should follow the

principles of effectiveness, proportion and dissuasiveness.

19

order, subpoenas, house searches, seizures, freezing of assets, interception of communications, covert

investigations, controlled or supervised deliveries, etc.) would be subject to reviews by courts or would

be ordered by the ‘judge of freedoms’ on application from the European Public Prosecutor. The EPP

should be able to call on the national investigation, police and judicial services, possibly organised as

joint investigation teams, to execute measures taken or authorised by courts and an obligation to assists

should be set. In this phase, the EPP must act with full respect for fundamental rights as secured by

Article 6 of the Union Treaty, the Charter of Fundamental Rights of the European Union and the

European Convention for the Protection of Human Rights and Fundamental Freedoms (i.e. defence

rights, ne bis in idem rule).

About the crucial question of the obligation or discretion to prosecute, it seems that the

Commission’s preference will be for a mandatory prosecution system, modified by exceptions. The

tendency towards approximation of national systems should facilitate this solution, since the hybrid

mandatory and discretionary system is now typical of the situation in the Member States (i.e. the

prosecutor has to state reasons for a decision to close a case without further action or a variety of cases

might be closed subject to stated conditions, such as cases of minor importance or with potential

negative impact of the proceedings on the outcome of the case or when sums corresponding to the

financial interests that are violated have been recovered by out-of-court settlement, with no exception to

be made in certain aggravating circumstances).

If the European Public Prosecutor then decided not to prosecute, he would have to close the case

and, if the prosecution has already been launched, take a decision to drop it. He would then send the file

for information to the national enforcement authorities, leaving it to them to decide whether such a case,

in which prosecution is not mandatory at European level, is nonetheless of interest at the national level

for other types of offence, without violating the ne bis in idem principle.

As for the distribution of cases between the European Public Prosecutor and the national

prosecution authorities (for the sake of consistency, to save resources and to avoid violations of the ne

bis in idem rule), the EPP has jurisdiction over offences which affect the Community’s financial interests

and, rather than exclusive powers, it would be preferable to recognise two principles to enable him to

perform his role: systematic referral to him and his primacy over the national authorities. In hybrid

cases, the prosecutions might be dealt with separately in simple cases; in more complex cases (where the

same conduct constitutes two offences, one of them a national offence and the other a Community

offence) the prosecution should be concentrated in the hands of the EPP, but organising a dialogue with

the national prosecution authorities by consultations24

.

24

Given the obligation to refer cases to the EPP wherever the Community’s financial interests are involved, the

European Public Prosecutor would decide in appropriate cases to refer to the national authorities offences which affect

‘principally’ national interests, for the primacy of lex specialis over lex generalis. On the other hand, in cases where the

European Public Prosecutor did not refer a hybrid case to the national authorities, he could have recourse to a joint

20

The outcome of EPP prosecution might be closing or not pursuing the case or committing it for

trial by a bill of indictment.

As for the trial stage, since jurisdiction could still be claimed by several Member States at once,

the EPP should choose on the basis of definite criteria one of the States that have jurisdiction under the

convention-based instruments as the one in which the case would be sent for trial. Then the EPP

(meaning in practice the Deputy European Public Prosecutor in the Member State of trial) would

conduct prosecutions before the national courts and in accordance with national law. The main issue

here is the admissibility of evidence gathered in another Member State. The only certain point would be

that the evidence must have been obtained lawfully in the Member State where it is found.

Then, since acts done by the European Public Prosecutor have an impact on fundamental human

rights, they should be subject to review by the courts; this could be a very controversial point, especially

concerning the issue of which court should have jurisdiction.

Since many functions would remain purely national (criminal investigation police forces; judicial

review functions; administration of justice; enforcement), the system would require permanent

cooperation between the European Public Prosecutor and the national police and judicial authorities of

the Member States. The EPP should obviously have complementary relations also with those authorities

involved in cooperation in criminal matters in the European Union, such as Eurojust, Europol and the

European Judicial Network, especially in cases extending beyond the protection of the Community’s

financial interests. The establishment of a EPP would also significantly affect OLAF’s current role: the

substantive jurisdiction (compilation of facts) of the Office and the EPP would partly overlap and the

relationship between them must be clearly defined, firstly by settling an obligation for OLAF to transmit

information to the EPP.

The Green Paper was followed by extensive consultation and a “Follow-up Report” in 200325

.

Another consultation was launched by the Commission in 2012.

Some replies remarked the need to ensure that the legal framework relating to the Prosecutor is

established in respect both for the various legal traditions of the Member States and for the subsidiarity

and proportionality principle, without prejudice to the protection of fundamental rights and legal

certainty. They particularly focused on: the independence of EPP, alien to their legal traditions, where

only the trial courts enjoy full independence; the need for harmonisation of some rules of substantive

criminal law, such as the maximum and the minimum criminal penalties for offences prosecuted at

European level and the limitation period rules; the principle of mandatory prosecution, which, according

to the majority of States, should be subjected to exceptions; the issue of allocation of powers and control

prosecutions scheme, involving the Deputy European Public Prosecutor and the national enforcement authorities. If different

courts are hearing cases in parallel, there should be a procedure for settling conflicts of jurisdiction in the Court of Justice. 25

More than 70 written replies were received by the Commission, from Governments and national Parliaments of

Member and candidate States, from representatives of judicial authorities, lawyers’ associations, groups of European legal

experts, non-governmental organisations and centres for legal and judicial research.

21

of hybrid cases; the establishment of certain criteria for the choice of the forum; the need for mutual

recognition of investigative measures, in order to avoid forum-shopping; the need for the mutual

recognition of evidence, in order to remedy the current fragmentation of the European law-enforcement

area (although many respondents considered that such a system raises serious problems both for defence

rights and for certainty as to the law); the establishment of common mechanisms or minimum rules for

the judicial review of EPP’s measures and for the protection of fundamental rights, as an essential

counterpart to conferring enforcement powers on a Community body.

Despite the inclusion of this provision in the fundamental treaties and although European

institutions keep calling for its institution26

, in the present moment, the path towards the establishment of

the EPP’s Office still seems to be an issue.

There are several problems at stake: the fragmentation of criminal law and procedures in the

European Union; the independence and/or impartiality of national public prosecution in front of a new

European office; the judicial reviewability of his decisions; the mandatory character of prosecution; the

guarantee of a judge established by law. Giving an answer to these questions would shape the European

Public Prosecutor Office and would, at the same time, give a contribution to the creation of a common

standard for public prosecution in Europe27

.

26

See for instance, “Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions on the protection of the financial interests of the

European Union by criminal law and by administrative investigations” of 26 March 2011 or the “Roadmap 2012 of the

proposal on the establishment of a European Public Prosecutor’s Office”

(http://ec.europa.eu/governance/impact/planned_ia/docs/2013_just_007_eppo_for_protection_of_eu_financial_interests_en.p

df). 27

For further references and opinions see “Focus: European Public Prosecutor”, in Eucrim-The European Criminal

Law Associations’ Forum, no. 2/2012 and Eric Alt, “The European Public Prosecutor: a Challenge for the European Union”,

on http://medelnet.org/images/EPP%20EN%201.pdf.