Abstract
This piece looks at the principle of equality of arms in EPPO proceedings, arguing that it should be looked at as a mandate for maximisation rather than only as a requirement of meeting certain minimum standards. It advocates for addressing the imbalance in a three-fold manner: in the short term, i) it is up to the EPPO itself to set its bar high and harmonise practices and procedures in a way that maximises the respect for the principle of equality of arms, by strengthening and harmonising the rights of defence; in the medium-term ii) to create a strong and harmonised set of procedural safeguards that addresses the systemic flaw and the fragmented legal protection, including the right to effective judicial review and substantive remedies, but also safeguards for intrusive acts of evidence-gathering, seizure and detention; and iii) to set avenues of direct access for the accused to the Court of Justice of the EU in respect of EU Law in EPPO proceedings. It concludes with the author’s wish that the establishment of a single prosecution office will be counterbalanced by the enfranchisement of citizens with a robust single Charter of defence rights, including a strong and pro-active global defence, and effective remedies under a single legal area, including access to a truly European Court: One Single Office, One Single Charter, One Single Global Defence, One Single Court.
Keywords
Equality of arms in Criminal Proceedings?
Is there such a thing as “equality of arms” in criminal proceedings? Or is the concept foreign to a system in which the criminal process is not a purely adversarial contest between two opposing parties? The first interrogation must be answered in the affirmative, while the second must be clearly replied in the negative.
The idea of a purely adversarial procedure (which would be the trait of common law systems) as radically opposed to an inquisitorial procedure (which would be the trait of continental systems) is nowadays a somewhat distant idea. The borders are blurred. 2 Inquisitorial systems have become more adversarial. And even in the “purest” adversarial systems (such as the US), there are always certain obligations imposed upon the prosecution that may benefit the defence (such as disclosure of certain exculpatory evidence). The principle of equality of arms hence applies in both systems and is undoubtedly one of the fundamental principles in contemporary European criminal procedure.
The question that should be posed is thus a different one: what does equality of arms in criminal cases entail? Equality of arms seems to be a concept used rather as a general principle (or even meta-principle) or even an objective of criminal procedure (as an element of the fair process), which permeates the whole of the criminal procedure, both from a more structural perspective (the definition of the position and the rights of intervention of those involved in the process, such as the Public Prosecution, or the accused) and a more dynamic perspective (related to how the process unfolds and how those involved are given a possibility to influence the Courts’ decisions on the merits of the case).
In this sense, the implications of the principle of equality of arms in criminal cases are wholly distinct from those in civil cases. Typically, in civil cases, equality of arms will be guaranteed by attributing similar positions and rights to the parties involved, which is understandable given the (as a principle) levelled position of both parties in disputes of a civil nature.
Were this to be followed in criminal cases, it would result in aggravating the structural inequality that is always present in a criminal process in which one of the “parties” is the State, an entity that possesses the monopoly of the use of force and coercion, which seeks, by means of the process, to obtain a ruling that will impose a sentence that, by its very nature impinges on the most essential rights, such as the right to freedom, property, honor, etc. This “party”, in order to bring the case forward, is able to use means that interfere with the fundamental rights of the accused and third persons, namely highly intrusive measures such as monitoring of communications or conversations, searches and seizures, etc.
It follows that in criminal cases equality of arms is not about giving the accused or the public prosecutor the same rights. It is rather about acknowledging the immanent inequality between the accusation and the accused, and putting in place an institutional structure and procedure that will counterbalance that inequality to the point that society as a whole and the accused in a given case may be satisfied that the process was fair, meaning that the accused have all the “arms” they need in order to be able to effectively rebut the accusation they face and avoid suffering a sanction.
These “arms” are often materialised in rights that shape and empower the legal position of the accused - the rights of defence - but also in the establishment more generally of certain “objective” procedural safeguards – such as the jurisdictional and impartial control over acts of the prosecution that may contend with the fundamental rights of the accused and have a decisive impact on their position (e.g. requiring a Court to control the legality and proportionality of measures of monitoring of communications, or of any periods of detention). Even if the prosecutor is bound by law to act “objectively”, i.e. to seek both inculpatory and exculpatory evidence (as is the case of the EPPO under Article 5(4) of the EPPO Regulation), 3 equality of arms and fairness cannot be reached if the safeguarding of the rights and interests of the accused is entrusted to the prosecuting authority.
From an even more general perspective, however, one must look at equality of arms not as a set formula of organisation and procedure and a minimum set of rights of defence, but as an all-pervading purpose. The pursuit of implementing the equality of arms in criminal proceedings should therefore be looked at as a mandate to afford the maximum safeguards rather than a mere requirement of meeting certain minimum standards.
Especially at this unique juncture of setting up a new Body such as the European Public Prosecutor’s Office (‘EPPO’), one could argue that the EU should strive for the highest standards of fair trial, not for minimum requirements. It is paramount that the EPPO establishes itself as a strong, fair and reputable European Body, a symbol of the rule of law, justice and transparency in the European Union. The higher the level of legal quality of EPPO proceedings, the more the rule of law standards are fully complied with therein, the more transparent towards civil society the EPPO is, the higher the degree of respect and acceptance of this new European institution (and the full adherence thereto by all European Union Member States) will be.
The added imbalance in cross-border settings and in EPPO proceedings
As referred to in a text I co-authored, the “systemic flaw” and the “fragmentation of legal protection” that are connatural to cross-border proceedings based on mutual trust (characteristic of relations between “equal sovereigns”) are “two of the oldest, well-documented problems in interstate cooperation”. 4
The
The
The classic example is the European Arrest Warrant (hereafter ‘EAW’) in which courts of most Member States will not assess whether an EAW was lawfully issued in the issuing State or whether it was proportionate. Equally, in an EAW case the right to be brought promptly before a judge who will decide on the lawfulness of detention is emptied, since the executing authority of an EAW will deny any violation on the ground that the person is brought promptly before a judge in the executing Member State (even if this judge cannot rule on the sufficiency of the evidence, flight risk, etc. in the criminal case); and the issuing authorities will also consider that the requirement is met, since the person will be brought promptly to a judge as soon as they enter their Member State after surrender. Similar examples can be found with respect to access to the case file. 7
The same applies to the monitoring of communications, where most Member States will do only a formal assessment of the requirements of the measure under their laws, while they will not review the evidentiary threshold or the proportionality required to use such measures in a domestic case (even if those requirements in the issuing State do not exist or are radically different from the laws of the executing State). In addition to this, the remedies available to the persons targeted in this context, be they procedural or substantive, are also shortened: no court in the involved Members States will undertake a full review and, apart from that, even a successful challenge in the executing member state may have no effect whatsoever in the ongoing case in the issuing State.
Despite being longstanding issues, in practice these flaws are often not counteracted by corresponding strong procedural safeguards and remedies in the EU Member States be it at the domestic or EU level, which is detrimental to equality of arms from an EU Citizen’s perspective.
One would therefore assume that the EU legislator would have tackled these gaps when putting together a new EU-wide prosecution service, by enacting a set of strong procedural safeguards and remedies in EPPO proceedings applicable in all participating Members States. Reality shows otherwise. In fact, the existing problems are exacerbated in EPPO proceedings since the Regulation created a pan-European investigation and prosecution office (‘single office principle’), with competence of its own, but did not lay down a pan-European legal framework or a pan-European jurisdictional protection scheme. This means that, on the one hand, Europe-wide prosecution is facilitated and led by a single office that acts in a coordinated manner. However, on the other hand, the citizen that is targeted by EPPO investigations is not enfranchised with a Europe-wide set of rights, adapted to this concept of single-office (‘no single charter of rights’) and is not protected by a Europe-wide system of judicial review, be it institutionally, procedurally, or substantively (‘no single court, no single process, no single remedy’).
Areas of imbalance
Against this backdrop, the implications of the principle of equality of arms for EPPO proceedings, understood as a mandate to implement maximum standards of fairness and rights of defence, can be manifold. This contribution will focus on specific areas in which the existing imbalance must be definitely addressed, namely: 1) lack of clear legislation; and 2) the need to safeguard strong legal assistance by: a) active defence participation and defence investigations, b) availability of “global defence”, including legal aid, c) access to case materials, and d) lack of effective remedies.
All these areas are intrinsically connected and directly impact the right that is fundamental to any criminal process in which equality of arms is respected, namely the right to an effective defence.
Lack of clear legislation
The legal framework of the EPPO was adopted following difficult political negotiations and pragmatic consensus remains short of creating a fully-fledged European body applying a unified or at least greatly harmonised criminal procedure. Indeed, as an EU criminal lawyer and practitioner reading the EPPO Regulation, I find myself in a room full of fuzziness and uncertainty.
For example, the EPPO Regulation contains beautiful forms of words or proclamations of principles, such as: “the activities of the EPPO shall be carried out in full compliance with the rights of suspects and accused persons enshrined in the Charter, including the right to a fair trial and the rights of defence”; 8 yet there are few operating provisions. The Regulation states that the minimum rights established in the procedural rights’ Directives 9 as well as the rights enshrined in national law are applicable in EPPO proceedings. 10 The minimum rights set out in the Directives are a point of departure, but are clearly insufficient in this regard, not only due to their limited scope and minimum character, their often vague and not self-standing wording, but in particular because they do not address at all the particularities faced by the defence in a cross-border setting in EPPO proceedings. Beyond that, national laws do not necessarily implement the Directives properly, and therefore, the rights established therein are not uniform among EU Member States.
Furthermore, the EPPO Regulation provides for jurisdictional control of EPPO acts (not of Member States courts), nevertheless there is no reference to standards for what that judicial review should entail, what procedure is applicable or what are the consequences of a successful challenge. In addition to that, although the EPPO has been set up as a “single prosecution office”, no right of direct access to the EU highest court is granted to those facing an EPPO investigation 11 which in turn raises concerns about whether effective remedies are available in EPPO proceedings, as will be analysed below.
The legal setting described above contrasts with national codes of criminal procedure, which usually provide a comprehensive set of rules on the status of suspects or accused, vesting them with precise and detailed rights.
A suspect, accused or defendant in criminal proceedings brought by a truly European Body such as the EPPO must have the same rights throughout Europe (a need which becomes the most pressing as the Regulation allows for flexibility of forum choice). And these rights must be established by law, in a clear and predictable manner, and must be concrete and effective, not only theoretical and illusory (to borrow the expression coined by the European Court of Human Rights – hereafter ‘ECtHR’).
Law and practice show that there is no such equal and effective protection throughout the EU. Even those rights that are well-established at domestic level are blurred when put in a cross-border context or in this new setting of prosecution by an EU Body. In order to bring this lack of clarity and certainty to an end, further steps in the direction of the creation of truly European rights and remedies must be definitely taken.
One could wonder how the need for legal clarity as illustrated above relates to the principle of equality of arms. The ECtHR has stated that: “[…] the principle that the rules of criminal procedure must be laid down by law is a general principle of law. It stands side by side with the requirement that the rules of substantive criminal law must likewise be established by law and is enshrined in the maxim “nullum judicium sine lege”. It imposes certain specific requirements regarding the conduct of proceedings, with a view to guaranteeing a fair trial, which entails respect for equality of arms. The principle of equality of arms requires that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent […] The Court further observes that the primary purpose of procedural rules is to protect the defendant against any abuse of authority and it is therefore the defence which is the most likely to suffer from omissions and lack of clarity in such rules. Consequently, the Court considers that the uncertainty caused by the lack of procedural rules established beforehand placed the applicant at a considerable disadvantage vis-à-vis the prosecution, which deprived Mr Coëme of a fair trial for the purposes of Article 6 § 1 of the Convention.”
12
In respect of the rights of defence in particular, the ECtHR regularly analyses the issues of equality of arms and adversarial trial as overlapping with the defence rights under Article 6(3) of European Convention on Human Rights (hereafter ‘ECHR’), which are constituent elements of Article 6(1) ECHR, even though the latter contains broader guarantees.
13
As summarised by Judges Sajó, Lazarova-Trajkovska and Vučinić joined by Judge Turković of the ECtHR, in their partly dissenting opinion in Simeonivi v. Bulgaria: “The defence rights protected under Article 6 serve to preserve the equality of arms between the State and individuals accused of criminal offences”.
14
In my view, it seems clear that the imperative of legal certainty and predictability, corollaries of the rule of law principle and of a fair trial, require that the rules applicable to the investigation and prosecution, namely the organisational and procedural safeguards as well as the rights of defence, be established by law in a clear manner, in order to protect the accused “against any abuse of authority” since it is “the defence which is the most likely to suffer from omissions and lack of clarity in such rules”.
The rights of the defence in cross-border cases can only be effective if lawyers are highly specialised and speak foreign languages, as well as if their clients have adequate funding (see below). But even where that is the case, lawyers face severe difficulties in providing adequate representation to their clients due to the fragmented legal framework and the lacunae in domestic regulations.
The European Criminal Bar Association (hereafter ‘ECBA’) Cornerstones on the EPPO 15 form a good point of departure to assess the areas that should be explicitly regulated. From the very outset, the ECBA insisted on a catalogue of rights and safeguards to be included in the EPPO Regulation in order to stress their significance and guarantee the equality of arms, because the defence would face a “genuine armada of investigation and prosecution authorities at European level (EPPO, Eurojust, Europol, OLAF), in addition to the national authorities involved in EPPO cases, requiring a level of protection of rights even higher than at national level”. 16
At the time, the ECBA suggested the following as cornerstones in EPPO Proceedings: (i) immediate access to a lawyer of the accused's choice at any stage of the proceedings; (ii) absolute right to silence (principle of human dignity); (iii) right not to incriminate oneself (also for witnesses); (iv) right to information and to be cautioned (Letter of Rights); (v) mandatory defence and issues of waiver; (vi) legal aid on a reasonable and fair financial basis (EU funded); (vii) legal aid in all concerned Member States; (viii) right to information (access to the file, translation of documents etc.); (ix) right to gather evidence and to question witnesses (or to ask the EPPO); (x) legal privileges of defence lawyers; (xi) effective legal remedies and judicial review; (xii) compensation mechanism.
Availability of proactive legal assistance
With equality of arms being a general and very broad principle, one may wonder what the right to legal assistance entails and what it means to have “effective legal assistance”, especially at the investigative stage.
As the ECtHR put it (citations omitted): “The right of everyone “charged with a criminal offence” to be effectively defended by a lawyer, guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial […] Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and ill-treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused”
17
This right applies to any person deemed accused in the autonomous meaning of the Convention:
18
“[…] from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him […]; from the time of the suspect’s arrest, whether or not that person is interviewed or participates in any other investigative measure during the relevant period […]; a suspect questioned about his involvement in acts constituting a criminal offence[…]; a person simply interrogated after being called to give information, depending on the way the interrogation is conducted […]; an assisted witness in the framework of an international rogatory letter […]; a person suspected of having committed an offence, summoned and interrogated by a police or gendarmerie officer [in the scope of a non-custodial hearing] […]”
The right to legal assistance involves both a reactive and proactive intervention of the criminal defence lawyer.
19
In this regard, the defence lawyer’s work during the pre-trial stage goes beyond that of reactively assisting their client during interrogations
20
or challenging their detention and “waiting” for the investigation to come to an end. In Dayanan v. Turkey,
21
the ECtHR stated in this respect that: “[i]n accordance with the generally recognised international norms […] an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned […] the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention”.
22
The ECtHR further identified other legal services, the lack of which may undermine the fairness of proceedings: “refusal or difficulties encountered by a lawyer in seeking access to the criminal case file, at the earliest stages of the criminal proceedings or during the pre-trial investigation” and “the non-participation of a lawyer in investigative measures such as identity parades or reconstructions”.
23
Looking at Article 3 of Directive (EU) 2013/48, it becomes clear that such a regulation does not ensure the whole range of services associated with legal assistance.
The right to access a lawyer in the context of EPPO proceedings should be further regulated in order, on the one hand, to ensure legal assistance for acts other than those in which the accused is required to attend and, on the other hand, to establish a common definition of acts that the accused or their lawyer must be permitted to attend (in particular witness interviews, expert evidence, searches, etc.). 24 This is without prejudice of adding limitations on the right to legal assistance for strictly defined exceptional cases (for example, danger for the life or limb of third persons). One could argue that the EPPO Regulation could also provide for a common set of safeguards that should be afforded for those cases where the presence of the accused or their lawyer was not permitted due to a lawful limitation (for example, being granted access to the records of evidence-gathering acts as well as being able to call and confront the witness at a later procedural stage, and to challenge the lawfulness of the act, and possibly prohibitions of use, at least as a decisive means of evidence). This would be a significant improvement, in particular in cross-border EPPO cases, where the balance established under domestic law is often fragmented due to the circulation of evidence among Member States. Such safeguards could also contribute to ensuring the reliability of evidence since, in the inquisitorial system, the risk of evidence being unreliable is much higher than if such evidence was subject to an adversarial or contradictory evidence-gathering method.
In its 2013 Cornerstones on the EPPO, 25 the ECBA even advocated for a system of mandatory defence in EPPO cases as the only system which would be compliant with the objective of equality of arms. EPPO cases are generally more complex and give rise to substantial charges and damages, making it irreconcilable with the interest of justice to allow any suspect to act without legal assistance.
As the ECBA duly outlined, establishing a strong right to legal assistance is not only a legal and “constitutional” requirement of the rights of the accused. The lawyer plays a positive and constructive role in any criminal proceedings, especially in complicated transnational cases such as the EPPO’s. Timely and active participation of a defence lawyer in criminal proceedings does not constitute an obstacle to criminal justice but rather upgrades the effectiveness of criminal justice systems. Denying active participation of the defence will, in many cases, unduly prolong the proceedings (and this also applies when restricting access to the case file, as will be analysed below), as an admission of criminal liability cannot be reasonably made without knowing the evidence and the case against one’s client and without meaningful interaction between prosecution and defence. Legal assistance may also ensure the fairness of proceedings because equality of arms can only be guaranteed if all the parties have the same level of information and expertise. More specifically, it allows achieving better quality of criminal proceedings, including evidence gathering, and therefore admissibility of the evidence obtained; and it contributes to preventing miscarriages of justice, thus facilitating recognition and trust in EPPO proceedings throughout Europe. For example, the timely intervention of defence lawyers (who are aware of the perspective on the charges conveyed to them under privilege by their client) allows for an adversarial interview of a witness already at an earlier stage, resulting in a more accurate and reliable statement. Defence lawyers may put questions to the witness that the prosecuting authorities would not consider, as they may not be aware of the perspective of the accused at that early stage, as well as of the “wider picture” in respect of the facts under investigation, thus avoiding a biased interpretation of evidence or the production of incomplete and unreliable statements by the witness. Such an intervention also normally means that the lawyer will be obliged to raise at that stage any formal defects in the collection of evidence, therefore enabling those to be immediately remedied (whenever possible) and thereby safeguarding the use and reliability of the evidence at a later stage (and avoiding as soon as possible the use of unreliable evidence or of such evidence that should be excluded).
Active defence participation and defence investigations 26
Another area which needs to be improved lies in the proactive involvement of defence lawyers in the pre-trial stage. In this respect, there are marked differences between the paradigm of US criminal process – with lawyers taking depositions and using their own criminal investigators to collect evidence – and some continental legal systems where a lawyer could be accused of tampering with evidence, should they try to be proactive during the investigative stage or contact witnesses even during the trial stage.
In countries which allow for active defence participation, there uncertainty not only about what the law provides for and what the practice is, but also what exactly the role of a criminal defence lawyer is. 27
In many legal systems, defence lawyers are not allowed to actively investigate the case, while if they do actions undertaken may even be seen as an illegitimate interference with the investigation (this also applies to the trial stage). 28 In others, defence lawyers are not only allowed to participate in, and request state authorities to carry out certain evidence-gathering investigative measures, but also to conduct their own investigations and even contact witnesses as well as obtain statements from them. 29
Regimes where pro-active defence is not permitted may fall short of the requirements of the ECHR and thus of the Charter of Fundamental Rights of the EU (hereafter, ‘the Charter’). However, to this date, the matter has not been clearly ruled upon by European Courts, and despite the open wording of the ECtHR ruling in Dayanan,
30
“it remains to be seen whether the view that the defence lawyer’s function includes investigation of their client’s case is confirmed in subsequent”.
31
As a criminal defence practitioner, I would support this view, since I feel on the ground that defence investigations are essential, given the scarcity of resources of the police and prosecuting authorities to fully investigate a case, the often one-sided state investigations and the need to allow the defence to build their case independently without revealing it to the prosecution at the earlier stages of a case.
32
At the very minimum, the defence should be able to request the authorities to gather evidence and to participate in the evidence-gathering investigative measures (e.g. witness interviews, searches) during the pre-trial stage.
33
But some ECtHR case law leaves the possibility open for considering that such “minimum right”, at least in certain circumstances, needs to include the gathering of evidence by the defence. In this respect, another interesting case, dealing with expert evidence, supports, at least partially, this view. In Khodorkovskiy and Lebedev v Russia
34
the ECtHR stated that: “731. […]it may be hard to challenge a report by an expert without the assistance of another expert in the relevant field. Thus, the mere right of the defence to ask the court to commission another expert examination does not suffice. To realise that right effectively the defence must have the same opportunity to introduce their own “expert evidence”. 732.That right is not absolute and the forms in which the defence may seek the assistance of experts may vary. In the present case the defence tried to introduce their own “expert evidence” by proposing to the court two reports which it had obtained from third parties. Those reports were relevant, but the court refused to admit them. […] 735. In the circumstances the Court concludes that the CCrP, as interpreted by the Meshchanskiy District Court, created a disbalance between the defence and the prosecution in the area of collecting and adducing “expert evidence”, thus breaching the equality of arms between the parties. There was, therefore, a violation of Article 6 §§ 1 and 3 (d) on that account.”
In addition, the variance of standards between Member States means that in EPPO cases with cross-border links the right of the defence to proactive investigation may be undermined whenever evidence is in another Member State 35 where proactive investigation is not allowed. 36 In such cases, the lack of rules on the active involvement of defence lawyers may result in disparate protection levels. Whether such differences are still compatible with EU law may be disputed. In my view, it is not acceptable that in criminal proceedings of a European-wide nature, the rights of the suspect in relation to the lawyer’s active involvement depend on the forum – especially when the forum may be chosen under highly flexible criteria, thereby giving prosecuting authorities discretion to choose which rights are granted to the accused in each case. And it is certainly not desirable.
The Charter should be interpreted as granting, at the very least, the same rights as equivalent in the ECHR (Article 52(3) of the Charter). And therefore, if one would read Dayanan 37 and Khodorkovskiy and Lebedev v Russia 38 as requiring defence investigations, at least in certain circumstances, one could argue that the current situation where proactive defence is not permitted in some Member States is at odds with the Charter. 39 Furthermore, it should be borne in mind that the Charter allows for establishing higher protection of fundamental rights than the one provided for under the national law of Member States. The legal-political nature of the EU could advise (or even require) the creation of a different legal framework from that of the Member States in certain cases; as is the case of criminal proceedings of a cross-border dimension and EPPO proceedings which could justify establishing a higher protection of the right to active defence participation. 40
Availability of ‘global defence’, including legal aid
Where the investigative (or trial) acts conducted in a criminal case affect multiple jurisdictions in the EU and are led by a Body with European-wide powers, such as the EPPO, the rights of defence can hardly be effective if there are no EU law measures to compensate the imbalance created by the cross-border or European nature of the case. The nature of such investigations multiplies the potential applicable legal frameworks and remedies, as well as creates a fragmented criminal procedure which makes difficult to identify which is the applicable law and in turn, negatively affects the balance between the prosecution and defence, as outlined above.
Despite the inherent limitations on defence rights in criminal proceedings with a cross-border dimension and in EPPO cases, there are only two instruments at EU level containing rules dealing with “dual defence”. These provisions grant the right to legal assistance in EAW proceedings both in the executing and issuing Member State. However, the role of the latter is limited to “assist the lawyer in the executing Member State by providing that lawyer with information and advice with a view to the effective exercise of the rights of requested persons under Framework Decision 2002/584/JHA” 41 while legal aid is only provided in case of EAW “for the purpose of conducting a criminal prosecution”. 42
Likewise, at domestic level, the majority of the current legal frameworks of Member States do not include specific rules to be applied in cross-border or EPPO cases with respect to the rights available to the accused (for example, the right to challenge evidence obtained abroad or to challenge evidence which was sent abroad at an earlier stage without the knowledge of the accused) or in relation to the exercise of their rights (for example, even if there is a cross-border dimension or an EPPO case, the time limits for the defence to act are the same as in merely domestic cases), or in respect of legal aid provisions (there are no provisions requiring special qualifications for lawyers to act in such cases, or financial legal aid to support additional costs required by the cross-border nature of the case as a pre-condition for proper legal assistance).
The EPPO Regulation is regrettably silent on this matter. This status quo should be changed. Firstly, in the context of EPPO proceedings a right to ‘total or global defence’ should be established. A right that would entail the possibility to establish a defence team composed of lawyers coming from all relevant countries. This right should be understood as entailing the following: i) there should be no limitation to the role of the lawyers involved (to the contrary of what is established in the “dual defence” for EAW cases, referred above); ii) the added complexity and special legal and institutional framework of EPPO cases should be taken into consideration (for example, establishing longer deadlines than those established for purely national cases); iii) it should include any jurisdiction which is relevant to the case (countries where the investigation is ongoing, or in respect of which the defence anticipates that investigations could be opened or evidence could be gathered); and iv) it should include a corresponding financial legal aid scheme.
The current institutional and procedural setting is insufficient to ensure effective defence. On the one hand, this is due to the lack of availability of free and easily accessible legal information on criminal law and procedure of EU Member States in all EU languages, including relevant case law, for example in particular concerning to EPPO cases and the case law of the national courts (which are the main courts competent in this field!). Were EPPO cases to be tried at EU level by an EU Court, this problem would cease to exist, since EU case law is readily accessible to all EU citizens and lawyers in all EU languages. Absent such an institutional setting, a solution to this issue should be found, which would bring added value to the work of existing networks of defence lawyers. Namely, and absent another entity responsible for the collection and dissemination of the above-mentioned information, if the EPPO itself collects such information, it could make it available to the public. To this date, there is a noteworthy resource which aims at bridging this information gap (“EPPO-LEX”), 43 but a fully complete library of information cannot be put in place without the cooperation of the EPPO itself.
On the other hand, the defendant’s position is also undermined by the flagrant lack of any appropriate legal aid mechanisms. While there is no legal obstacle to set up such a global team, there is also no legal right to a defence by a truly global defence team. Consequently, an accused with no financial means cannot request financial legal aid to pay for their lawyers that would make up the global defence team. Investigation and prosecution by one single office should be counterbalanced by one global defence legal team that has the same jurisdictional knowledge and reach as the EPPO. This does not necessarily mean, in my opinion, that an “office of public defence” should be set up at EU level. 44 As suggested by the ECBA, there should be mandatory assistance in EPPO cases, and it should respect the right to instruct a lawyer of one’s own choice and be secured by a reasonable EU-funded legal aid scheme. Only duly qualified and experienced lawyers should be appointed in the framework of such a mandatory defence system.
Concerning the design of the legal aid scheme, this could be independent of any means or merit test (at least for the very initial stages of proceedings) and subject to payment of the fees in case of conviction, unless the accused would be unable to cover the costs (similarly to what occurs in some EU Member States, namely Scandinavian countries). In addition, a fund to support this mechanism could be set up using part of the amounts recovered within EPPO cases.
Due to the complexity and peculiarity of each case, remuneration in the framework of legal aid should not be based exclusively on a flat fee per case. Qualified and experienced lawyers must be reasonably and fairly paid depending on the time and effort they are required to invest (otherwise, if “you pay peanuts you get monkeys”), 45 even where the rates may differ across Member States. One could also suggest that a system supporting national bars, law societies or defence associations to provide EU-funded emergency defence services at the very initial stages of proceedings could be designed, efforts to train defence lawyers should continue, and a system to certify their qualifications for EPPO cases should be created, as ways of promoting quality of defence work.
Access to case materials
Access to the case files, apart from being a meaningful defence right itself, is a requisite for effective legal assistance and effective legal remedies, especially in the context of complex and cross-border cases such as EPPO cases. 46 Only if defence lawyers have access to the materials of the case, will they be able to properly perform their duties.
As outlined above, the ECtHR has stated that “refusal or difficulties encountered by a lawyer in seeking access to the criminal case file, at the earliest stages of the criminal proceedings or during the pre-trial investigation”
47
may harm the fairness of proceedings. The Court has also stated that: “[...during police custody] the applicant indeed saw a lawyer on 13 March 2003 for a short period of time, between 10.30 and 10.55 a.m. It is not, however, possible to discern from the documents in the case file whether this meeting took place before or after the applicant made his police statement, or what it involved. What is, however, clear to the Court is that the applicant’s lawyer had not been allowed to examine the investigation file at that point (see paragraph 8 above), which would seriously hamper her ability to provide any sort of meaningful legal advice to the applicant.”
48
As a matter of principle, access to the case file should be granted at the earliest stage possible. Additionally, the suspect or accused person should always get access as soon as coercive or intrusive covert investigative measures have been taken (such as search and seizure, freezing of bank accounts, etc.) and, of course, as soon as they are detained. 49
In this respect, in EPPO proceedings the following should be established, as a very minimum: during the investigative stage, if the defence has the right to participate in investigative measures or to challenge them following their execution, the full extent of the case materials which were analysed by the EPPO in order to decide on the adoption of the relevant investigative measure, must be disclosed to the defence lawyer upon their request, as well as, where applicable, the case materials that were presented by the EPPO to the relevant court in the Member States in order to obtain judicial approval for the adoption of an investigative measure (for example, an order for a search and seizure, freezing order, or an arrest warrant). This refers to the case files of the handling European Delegated Prosecutor (or supervising European Prosecutor), which is the main case file. 50 This file should be integrally reflected in the Case Management System (CMS). The case files should include the decisions and records of all investigative measures undertaken, even those executed by assisting European Delegated Prosecutors in other Member States, as well as any case materials in possession of the Assisting Delegated Prosecutor that have not been included in the file on the execution of the measure (i.e. when there is a parallel investigation ongoing in the State of the Assisting Delegated Prosecutor, in the course of which relevant evidence has also been gathered). In particular, when accused persons are detained, or the whole of their assets are frozen, getting full access to the case materials is even more crucial to safeguard the rights of defence (and thereby inter alia the rights to liberty and enjoyment of property).
Additionally, as suggested by the CCBE, 51 the mode of access should also make the exercise of defence rights easier and practical, namely by giving defence lawyers “an effective, certified, checked and traceable digital access to all and updated materials of the case”, equivalent to that given to the European Delegated Prosecutor. Namely, this could provide: i) effective and visible safeguards for the overall fairness of the proceedings (investigation and trial); ii) a strong statement from the EPPO in respect of the maximisation of equality of arms that may enhance the general acceptance and legitimacy of their proceedings; iii) setting a standard for all EU Member States to provide such digital access to case materials in purely national criminal proceedings as well; iv) a pragmatic solution to organise and ensure proper defence in this new kind of cross-border proceedings. 52
As things stand now, there is a total lack of uniform rules or standardised practice in the Member States in respect of access to the case materials, which complicates the situation. Rules in Member States vary, practice varies even more widely, judicial review is not available everywhere, and, where available, it follows different standards. The EPPO Regulation does not solve the matter either. Article 45 of the EPPO Regulation, entitled “case files of the EPPO”, reads as follows: “1. Where the EPPO decides to open an investigation or exercise its right of evocation in accordance with this Regulation, the handling European Delegated Prosecutor shall open a case file. The case file shall contain all the information and evidence available to the European Delegated Prosecutor that relates to the investigation or prosecution by the EPPO. Once an investigation has been opened, the information from the register referred to in Article 44(4)(a) shall become part of the case file. 2. The case file shall be managed by the handling European Delegated Prosecutor in accordance with the law of his/her Member State. […] Access to the case file by suspects and accused persons as well as other persons involved in the proceedings shall be granted by the handling European Delegated Prosecutor in accordance with the national law of that Prosecutor’s Member State. 3. The case management system of the EPPO shall include all information and evidence from the case file that may be stored electronically, in order to enable the Central Office to carry out its functions in accordance with this Regulation. The handling European Delegated Prosecutor shall ensure that the content of information in the case management system reflects at all times the case file, in particular that operational personal data contained in the case management system is erased or rectified whenever such data has been erased or rectified in the corresponding case file.”
In turn, Article 41 refers to Directive 2012/13/EU 53 which lays down minimum standards on the right to information and access to case materials. The mere existence of the Directive, however, does not mean that its provisions (namely Article 7(1) which refers to the access to case materials) are properly implemented at domestic level. Additionally, the provision is not sufficiently detailed, leaving a vast room for diverging interpretation and implementation by the Member States in respect of access to the case files during the investigative stage. 54
Amending the EPPO Regulation would take some time and it is doubtful that this will take place in the near future. Thus, in the meantime, the EPPO should work on establishing, together with defence lawyers, best practices for respecting defence rights in their proceedings. Furthermore, improving the internal rules of procedure and producing relevant guidelines – as part of the EPPO’s power to establish guidelines on matters of general interest and prosecution policy – could provide a means of swiftly streamlining the landscape of defence rights.
In respect of the Internal Rules of Procedure,
55
Article 43(3) to (5), state that: “3. Without prejudice to the provisions of the national law applicable to the case, the EPPO's case files shall be organised and managed in accordance with these rules in order to ensuring the proper functioning of the EPPO as a single office. Copies of all items added to the case file shall be stored in an electronic format in the Case Management System, where possible, in accordance with Article 44(4)(c) of the Regulation. 4. The practical arrangements for the access of the supervising European Prosecutor and of the competent Permanent Chamber to the information and evidence from the case files which cannot be stored electronically in the Case Management System shall be made with the handling European Delegated Prosecutor in a cost-effective manner. 5. On the basis of a proposal made by the European Chief Prosecutor, the College may adopt further rules on the management and the archive of the EPPO’s case files.”
Adopting guidelines in the field of access to the case file is, in my view, a legal obligation stemming out of the Regulation itself, namely Article 5(1) and (2), which read as follows: “The EPPO shall ensure that its activities respect the rights enshrined in the Charter” and it “shall be bound by the principles of rule of law and proportionality in all its activities”. And Article 41(1), which states that: “The activities of the EPPO shall be carried out in full compliance with the rights of suspects and accused persons enshrined in the Charter, including the right to a fair trial and the rights of defence”.
In reaction to this proposal, one could argue that the EPPO must operate under the Regulation which sets out that national law is applicable in respect of access to case files, thus the EPPO should not interfere. I cannot but only respectfully disagree.
Firstly, if not in all, in most Member States the law foresees a margin of discretion on whether to grant access to the case files at certain procedural stages based on an assessment of the risks likely to be caused to the investigation, etc. Guidelines on how to exercise this discretion are perfectly in line with the Regulation.
Secondly, this field is, to some extent, regulated by European law, namely in Article 7 of Directive 2012/13/EU which deals with the right of access to the materials of the case in criminal proceedings. The latter carries general concepts that need to be implemented with concrete rules, particularly by determining what is necessary “to safeguard the fairness of the proceedings and to prepare the defence” and what is “in due time to allow the effective exercise of the rights of the defence”. 56 In this regard, the EPPO could adopt relevant guidelines to clarify the above-mentioned terms and establish a minimum threshold, taking at the same time into consideration Articles 47 and 48 of the Charter and the established case-law of the Court of Justice of the European Union (hereafter ‘CJEU’).
Additionally, Article 7(1) of Directive 2012/13/EU requires (and exempts from any derogations) that “[w]here a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that
Thirdly, arguing that the applicability of national law determined by the EPPO Regulation in respect of access to case materials would limit the EPPO’s possibility to issue guidelines in this field would hardly be compatible with the approach followed by the Decision adopting guidelines of the College of the EPPO on the application of Article 31. 57 Regardless of whether I agree with the content of those guidelines, these were adopted – albeit their compatibility with the wording of the EPPO Regulation is questionable – with the aim of aligning the interpretation of Article 31 with the Charter. In the same vein, one could also argue that the EU Charter justifies adopting guidelines on the right to adequate access to case files.
Such guidelines would clarify how the discretion left to the Member States under domestic law in this field should be interpreted in EPPO proceedings, in a manner which is consistent with EU Law and in particular with the afore-mentioned Directive, the Charter, and the ECHR. Establishing these guidelines will certainly be an important step towards the aim of reaching the highest level of fairness in EPPO proceedings by ensuring equality of arms.
Lack of effective remedies 58
There is no right without a remedy
59
– a principle that is well-established in EU Law. As stated by the CJEU, in Associação Sindical dos Juízes Portugueses (citations omitted), recalling previous case-law:
60
34 The Member States are therefore obliged, by reason, inter alia, of the principle of sincere cooperation, […] first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law […] In that regard, as provided for by the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law. It is, therefore, for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields […] 35 […] effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the [ECHR] and which is now reaffirmed by Article 47 of the Charter […]” […] The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law […]
It follows from Article 13 ECHR that a “remedy” must meet two requirements: 61 i) to allow the competent domestic authorities to deal with the substance of an arguable complaint; and ii) to grant appropriate relief in case of upholding the complaint. 62 A remedy must also be available, not only in theory but also in practice. While Article 13 ECHR does not require a particular form of remedy, and the remedies provided for under domestic law may be deemed sufficient if considered altogether even when single remedies cannot be considered as such, the general legal and political context in which remedies operate as well as the personal circumstances of the applicant must also be taken into account. 63
Looking at EU instruments, one can notice that these lack a definition of “the remedies available to natural or legal persons”. For example, Article 12 of Directive 2013/48/EU requires Member States to ensure that suspects or accused persons in criminal proceedings, as well as requested persons in European arrest warrant proceedings, have an “effective remedy”, nevertheless it does not define what this term means. This implies that the principle of procedural autonomy leaves it open to Member States to choose the remedies they deem adequate.
In the field of EPPO operations, the situation is not much better, save that it seems to clearly establish a right to judicial review of EPPO procedural acts based on EU Law, even where such a right does not exist in national law. 64 More specifically, the following concerns arise:
Firstly, the blatant lack of access to the CJEU. As stated above, the citizen that is targeted by EPPO investigations is not protected by a Europe-wide system of judicial review, be it institutionally, procedurally, or substantively (‘no single Court, no single process, no single remedy’). In the European Union, the CJEU is the competent Court for the interpretation of EU law.65 However, by virtue of the decentralised enforcement system of EU Law (i.e. EU Law is generally enforced by national authorities rather than by European Union institutions), it is primarily for the national courts to apply EU law, acting functionally as Union courts, albeit not being EU bodies. Even the EPPO, albeit being a body of the Union according to Article 3(1) of the Regulation, is hybrid in its composition, acting through a structure that combines a central and a decentralised level. 66 As a rule, judicial protection in EPPO cases is carried out before the national courts 67 as the accused has no right to direct access to the CJEU. Even worse, the only direct appeal of an EPPO act before the CJUE can be lodged against the decision to dismiss the case. 68 It has been argued that the Commission and Member States, as “privileged” claimants, could make use of the direct actions before the CJEU under Article 263 TFEU, 69 which would, in my view, aggravate the imbalance between the defendant and prosecution and therefore infringe the principle of equality of arms and the rights of the defence, since those will often be the victims of the cases investigated by the EPPO.
In light of the above, it follows that the only way for an accused in EPPO cases to access the CJEU is by way of a preliminary reference. 70 The obligation to refer a matter to the CJEU is, however, not enforceable. If a national court refuses to submit a preliminary question to the CJEU requested by the accused, there is, in my view, a high risk of non application, or of an incorrect application of EU law, that cannot be subject to review by the Court which is competent to interpret or determine the validity of that law – the CJEU. In such cases, I believe one cannot say that there are adequate means of effective judicial protection for rights established in EU law. 71 It follows that the refusal by national courts to make use of the only available means of the accused to access the CJEU, that is, the preliminary reference, is not even subject to challenge before the CJEU, thus paving the way for national courts to arbitrarily restrict access to that jurisdiction.
Secondly, the lack of adequate national remedies. In fact, national legal systems may have no adequate judicial review in place or lack any adequate substantive remedies. Even if there are such remedies at national level, these differentiate from one Member State to another. This variance between the multiple national legal systems leads to unequal treatment of accused depending on the jurisdiction they are prosecuted in.
Thirdly, the lack of adequate remedies at EU Level. Even if one considers that Article 42 of the Regulation requires the Member States to create some sort of procedural remedies at national level, the Regulation does not define i) the standards of review; ii) the mode/extent of review; iii) the time of review; iv) the procedure to be followed; v) the consequences of a successful challenge. Although leaving the definition of remedies for Member States could be justified from a perspective of subsidiarity or procedural autonomy, it leads to a series of problems that may affect the very core of the right: i) there is a lack of a common understanding on the applicability of remedies as explained before (access, the procedural stage where a remedy is available, promptness, procedure, costs, suspensive effect, exclusionary rule, etc.); ii) Member States may choose a minimal implementation of the corresponding rights established in EU Law (as, for example, the minimal implementation of the procedural rights Directives); iii) it leaves too much room for intervention to the CJEU to define the concept of “effectiveness”, making the applicable law blurred. Finally, the lack of regulation of remedies clearly creates significant gaps in terms of some “federal questions” by nature, namely the choice of forum (horizontal and vertical conflicts of jurisdiction). 72 If the EPPO Regulation is interpreted along the lines of the EIO Directive, construed in line with what has been argued by the EPPO in its Guidelines on Article 31 73 (which are currently being tested before the CJEU), 74 this will mean that the accused will continue to suffer from the shortcomings deriving from the fragmentation of judicial protection identified above. These guidelines address the issue of judicial authorisation for investigative measures requiring authorisation by a court. According to Article 31(3) and Recital 72 of the EPPO Regulation, the principle of “single authorisation” is established: a court authorisation should be obtained in the Member State of the assisting European Delegated Prosecutor if their law so requires, or, in the Member State of the handling European Delegated Prosecutor, in case their Member State law so requires and there is no need for authorisation according to the assisting Member State law. The EPPO College argues that the assisting European Delegated Prosecutor needs not to provide the competent national court of the assisting Member State when requesting judicial authorisation for an investigative measure under Article 31(3) EPPO Regulation, “with more or different supporting evidence and documents than what the national prosecutor currently does when, i.e. executing an European Investigation Order (EIO) […] [i]n line with the principle that the justification and adoption of the measures is governed by the law of the Member State of the handling European Delegated Prosecutor” since the court in the assisting Member State should not “assess the ‘justification’ and the “substantive reasons” [which the EPPO defines as ‘necessity and proportionality’] for undertaking the measure”. The College consequently argues that where both Member States laws require judicial authorisation, or only the assisting European Delegated Prosecutor’s Member State requires such authorisation but the measure has to be subject to legal remedies, judicial authorisation should be requested in the handling European Delegated Prosecutor’s Member State, otherwise there would be no legal remedy available to challenge the substantive reasons to adopt the measure. 75 This reading clearly derogates from the regime established by the EPPO Regulation in Article 31(3) of the EPPO Regulation (see also Recital 72). The College argues that the limitation of judicial review of the “substantive reasons” for adopting investigative measures to the courts of the handling European Delegated Prosecutor’s Member State is a requirement of mutual recognition and of the aim of the EPPO Regulation establishing an office of prosecution which makes it easier to act all over the territory of the Member States. Allowing the courts of the assisting European Delegated Prosecutor Member State to review a measure adopted by the handling European Delegated Prosecutor would mean a regress in respect of the “effectiveness” of judicial cooperation in criminal matters that were in place before the EPPO was set up.
In my view, this interpretation is at fault. Firstly because it ignores that the EPPO does not operate under the “mutual recognition principle” and does not have to issue EIO to obtain evidence in another Member State. The EPPO is a “single prosecution office” 76 acting all over the EU Member States (even though it has a hybrid decentralised structure). It follows that no limitation to the power of the courts of the Member States may be drawn from the EPPO regime, in particular absent any clear wording of the Regulation to that end (to the contrary, there is explicit wording allocating the competence to the courts of the assisting European Delegated Prosecutor´s Member State in Article 31(3) EPPO Regulation). In fact, the argument that the law applicable to the adoption of the measures is the law of the handling Member State is not convincing, since the law of the assisting Member State is equally applicable (e.g. for certain measures, including intrusive measures – Articles 29, 30(2) and (3) and 32 EPPO Regulation). A good example is that of legal privilege: if the handling European Delegated Prosecutor orders a search of a law firm in the assisting Member State - let´s take the example of Portugal - this search is subject to previous judicial authorisation. This authorisation requires a decision on the proportionality lato sensu of the search, which obviously needs to be made by the judge in the assisting Member State, requiring him to analyse the evidence in the case files. Limiting this judicial oversight would undoubtedly produce a crass regress from the perspective of the rights of those targeted by such a measure. And nowhere in the Regulation is there wording on which such a limitation could be based. The applicable law argument also ignores that Article 30(5) of the EPPO Regulation establishes a European proportionality criterion which can be subject to review by the courts of assisting European Delegated Prosecutors’ Member States as effectively as by the courts of the handling European Delegated Prosecutors’ Member States. There is certainly an added difficulty stemming from the linguistic barrier. However, case materials of the handling European Delegated Prosecutor can be summarised and translated for review by a court of any of the Member States in the same way as they do for the exercise of the Permanent Chambers’ powers. Secondly, because, in my view, allowing this intervention by the courts of the executing Member State – in the EPPO setting this is translated into the assisting Member State – was not prevented by the EIO Directive. It must be noted that Gavanozov II does not mean the contrary. The CJEU notes that executing authorities may refuse to execute an EIO “exceptionally, following an assessment on a case-by-case basis, where there are substantial grounds to believe that the execution of an EIO would be incompatible with the fundamental rights guaranteed, in particular, by the Charter”. 77 However, in the case at hand, the Court was concerned that “in the absence of any legal remedy in the issuing State, the application of that provision would become automatic” which “would be contrary both to the general scheme of Directive 2014/41 and to the principle of mutual trust”. 78 It follows that the CJEU admits that if, on a case-by-case basis there is a risk of violation of fundamental rights, the executing authorities may refuse execution, which in certain cases may require an assessment of the substantive reasons to adopt the measure. This also follows, in my view, from Article 14(2) EIO Directive (emphasis added): “[t]he substantive reasons for issuing the EIO may be challenged only in an action brought in the issuing State, without prejudice to the guarantees of fundamental rights in the executing State”. As written earlier, the substantive reasons refer to the legality and proportionality of the measure (which must be assessed in the issuing State according to Article 6(1) EIO Directive) 79 and will generally be assessed in the issuing State. There may be doubts about whether they also include other matters. 80 However, this seemingly exclusive jurisdiction of the issuing State does not apply where fundamental rights may be at stake, which significantly blurs the division of tasks between Member States with regard to the legal remedies. This will be the case where there are no legal remedies in the issuing State that allow challenging the adoption of the measure, including its substantive reasons. 81 But also, in my view, where an investigative measure impinges upon fundamental rights, i.e. the right to privacy, the right against self-incrimination or the prohibition of inhuman and degrading treatment. Such investigative measures must comply with criteria of legality and proportionality (see at EU level Article 52(1) of the Charter). In the absence of harmonisation, the executing authorities must perform a review of legality or proportionality under their law, subject to judicial review. 82 The assessment of proportionality in these cases is inherent in the assessment of the legality of the measure, the latter presupposing the former. 83 It has also been suggested that a review of substantive grounds in the executing State is possible where there is need for a court authorisation ex ante for certain intrusive measures arising not only from the national law of the executing State, but also from the Charter when no such review exists in the issuing State. 84
As stated elsewhere, 85 in relation to procedural remedies 86 – i.e. minimum requirements for obtaining effective judicial oversight in respect of alleged violations of EU rights (the need to establish a remedy; the judicial nature of the competent authority; the requirement that such authority has jurisdiction to grant relief if an EU right was violated; an extension of national deadlines if there is a cross-border link; the standards of review; the mode / intensity of review; the moment of review; the procedure for review; etc.) 87 – the challenge is to create standards that are sufficiently flexible to be introduced into the domestic systems without affecting their balance.
As regards substantive remedies – i.e. the appropriate relief that has to be made available 88 – as written elsewhere, 89 these will have to ensure restitutio in integrum to be effective. According to the ECtHR’s case law, 90 a decision or measure favourable to the applicant is only sufficient if the national authorities have acknowledged, either expressly or in substance, a violation of the Convention, and then afforded redress for it. 91 Two types of relief are generally required under ECtHR case law: (1) bringing the violation to an end and (2) affording compensation for any damage sustained because of the violation. 92 Translated into EU criminal matters, this principle could be understood to imply that the person needs to have the possibility to ask for redress of their situation within the criminal case, as a means of putting an end to the violation. A compensatory remedy awarded without any implications for the criminal procedure itself, such as compensation for damages suffered, would not be sufficient to consider the remedy effective.
In light of the above considerations, EU law should establish the features remedies must meet in order to be considered effective. To this end, access to the CJEU needs to be granted within EPPO proceedings, namely: i) there must be remedies available to challenge a decision of national courts to refuse to refer a matter to the CJEU; and ii) there must be direct access to the CJEU.
Furthermore, standards for procedural remedies provided at domestic level should be established, and, at least for the set of rights to be included in the EPPO Regulation, if amended, substantive remedies for any violations thereof should also be inserted. Nevertheless, this should not be understood as resulting automatically in annulling the whole criminal procedure, as, in my view, it should be taken into account whether the violation is of “constitutional” significance (i.e. if it affects fundamental rights), be it because it affects the structural fairness of proceedings (e.g. use of torture), or had an impact on the individual rights of the persons concerned, or the exercise of the rights of defence or on the outcome of the case. 93 In the field of EU law, different approaches of substantive remedies have been suggested, 94 namely: (i) the adoption of minimum rules harmonising procedural sanctions against breaches of the rights established in the Procedural Rights Directives, thereby enhancing mutual trust and recognition by means of a “roadmap” on procedural sanctions (preceded by comparative studies, which aim at identifying adequate minimum sanctions against the different breaches of the different rights); but also (ii) the development of CJEU case-law including the application, in particular in the most sensitive areas, of the principles elaborated by the European Court of Human Rights.
It should be noted that the implementation of effective judicial protection may be achieved through a wide array of remedies, depending on the rights that have been violated. As put by André Klip:
95
“[a]s a general rule, one can presume that the violation of a procedural rule has consequences for the issue to which it relates. For example: if the accused was not granted enough time to study the case against him/her, the remedy would normally be to grant him/her such time; if the accused was not informed on a change made to the facts or offences stated in an indictment and was convicted for different facts or offences, the remedy could be either an annulment of procedures whereby he/she would receive such information and be able to defend him-/herself before a new judgement is pronounced; or it could be to reverse the judgement and acquit him/her in relation to those new facts; if a piece of evidence is obtained in violation of a right, the remedy could be the exclusion of the evidence or, in certain cases, also of derivate evidence and causally linked procedural acts. Another example is the case that the violation of the right to be made aware of the contents of the indictment must be redressed by putting the person in the situation by which he/she would benefit from the objection deadline (cf. ECJ, 22 March 2017, joined cases C-124/16, C-188/16 and C-213/16, Criminal proceedings against Tranca, Reiter and Opria, para. 46).”
In the field of the gathering of evidence, proposals for legislation laying down common rules for the admissibility and exclusion of evidence in criminal proceedings have already been advanced. For example, Garamvölgyi/Ligeti/Ondrejová/von Galen have suggested the adoption of an instrument covering both domestic and cross-border cases with a “rule of inclusion” obliging the national authorities of a Member State to admit evidence collected by the judicial authority of another Member State pursuant to a mutual recognition instrument. This rule would be flanked by rules of exclusion derived from European human rights law, but going beyond the limited ECtHR case law and sanctioning certain violations of the rights laid down in the EU acquis with exclusion (“non-admissibility or nullity”). The initiative could also approximate rules on the gathering of evidence, in particular in respect of specific types of evidence, such as e-evidence. The authors nonetheless acknowledge that the EPPO negotiations “reveal that Member States may fiercely fight a harmonisation of investigative measures”. 96
In my view, adopting specific procedural and substantive remedies for EPPO cases would be in line with Article 47 of the Charter of Fundamental Rights in combination with the principle of effectiveness and uniform application of EU law, as the application of EU defence rights also depends on the remedies that are available to protect them. 97
Outlook
Equality of arms in criminal cases requires acknowledging the immanent inequality between the accusation and the accused and putting in place an institutional structure and a procedure that will counterbalance that inequality to the point that society as a whole and the accused in a given case may be satisfied that the process was fair, meaning that the accused have all the “arms” they need in order to be able to effectively rebut the accusation they face and avoid suffering a sanction.
These arms take the form of rights that empower the legal position of the accused, as well as certain procedural safeguards.
However, as illustrated in this contribution, equality of arms between the prosecution and the accused is undermined in EPPO cases. The existing imbalance could be addressed in a three-fold manner: in the short term, i) it is up to the EPPO itself to harmonise practices and procedures in a way that maximises the respect for the principle of equality of arms by strengthening the respect of the rights of defence (which would indirectly contribute a more harmonious operation of those rights in Member States’ pratice); in the medium term ii) the EU legislator should create a strong and harmonised set of procedural safeguards that address the systemic flaw and the fragmented legal protection, namely in respect of the rights of the defence, effective judicial review and substantive remedies, but also safeguards for intrusive investigative measures of evidence-gathering, such as search seizure and intercept evidence; and iii) the EU legislator should set avenues of direct access for the accused to the Court of Justice of the EU in EPPO proceedings.
As Dr. Luther King Jr put back in his speech in 1963, 98 I would say that “even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the [European] dream. I have a dream that one day this [Union] will rise up and live out the true meaning of its creed”. A dream of a real “Union founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights” 99 which “shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States”, 100 including “full compliance” with the Charter and the aim of fairness and equality of arms. An area in which the establishment of a single prosecution office will be counterbalanced by the enfranchisement of citizens with a robust single Charter of defence rights, including a single strong and pro-active global defence, and effective remedies under a single legal area, including access to a truly European Court: One Single Office, One Single Charter, One Single Global Defence, One Single Court.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
