Fundamental Rights and Effectiveness in the European AFSJ

• Date: 01 June 2018
• Year: 2018
• Author: Prof. Dr. Lorena Bachmaier
• Pages: 58
• DOI: https://doi.org/10.30709/eucrim-2018-004

I. Introduction

In the context of the European Union’s area of freedom, security and justice (AFSJ), “the need to strike the right balance” has become a kind of slogan representing the wide notion of assessing the proportionality principle. A balance needs to be found between the effectiveness in crime prosecution and cooperation, and the protection of fundamental rights, but also between the primacy of EU law and national constitutions. In the end, achieving this balance will define the scope of the mutual recognition concept,¹ and such balance should always favour the protection of the fundamental rights, without losing sight of the needs of providing security. The entire history of criminal procedure at the end is the struggle to find this much-needed “right balance.” My aim is not to offer a definition and not even an approximation of a concept of the “right balances” in cooperation in criminal matters in the ASFJ. This would be completely illusory and clearly doomed to fail. By addressing two precise scenarios, I will attempt to show how the “needed balances” are understood, and this should serve to further analyse whether the EU is moving in the right direction in the field of cooperation in criminal matters.²

The first scenario will focus on the protection of fundamental rights in cross-border investigations within EPPO proceedings under Regulation 2017/1939. The project of establishing a supranational prosecutor’s office raised alarm bells within academia and had lawyers warning against the potential risks a powerful supranational prosecution institution would present for the protection of the defendant’s rights and the principle of equality. Now, the moment has come to assess whether those fears are still justified or not (cf. section II.).

Secondly, I will analyse a number of aspects regarding the instrument of cooperation in criminal matters that could be seen as the “jewel of the Crown”, which is the European Arrest Warrant (EAW). In section III, I will address the problems related to trials in absentia in the case law of the ECJ in the context of enforcement of EAWs and I will also detail the possible impact of Directive 2016/343 on the presumption of innocence and the right to be present at trial.³ In the end (section IV), I will outline several relevant aspects that should be taken into account when analysing the shortcomings of the mutual recognition principle and the problems of its implementation.

II. EPPO: Fundamental Rights, and Cross-Border Investigations

After years of discussion and negotiations, the EPPO Regulation was finally adopted (hereinafter RegEPPO) in October 2017.⁴ The model agreed upon can be defined as an “integrated model” with a central deciding and coordinating unit, and a decentralised structure where the main actions are carried out through European Delegated Prosecutors (EDP).⁵ The initial idea of establishing a single legal space, where the EPPO would act on investigative measures under its own set of rules that would be applied in a uniform way all across the EU, has completely disappeared in the Regulation. Under the present system, the EPPO will be an indivisible Union body operating as one single Office (Article 8(1) RegEPPO). However, for the purpose of gathering evidence, it continues to operate on the basis of the principle of national territoriality.⁶

The lacking uniformity of this integrated model entails that the national law for the protection of procedural safeguards applies. The defendant is faced with a powerful supranational structure with “delegations” in all EU Member States having access to cross-border evidence, whereas the rights of defence continue to rely on the diverse regulations in the national law of each State, save the minimum harmonization that the EU Directives on procedural safeguards of suspects and defendants in criminal proceedings foresee.

The EPPO Regulation addresses the protection of fundamental rights at different Recitals,⁷ and Chapter VI is devoted to “procedural safeguards.” This chapter, consisting of two articles, recognises the need to take into account the rights of suspects and the accused enshrined in the EU Charter of Fundamental Rights (Article 41(1) RegEPPO). Article 41(2) follows with the “minimum standards” that must be provided in every Member State’s national legislation, by referring to the EU Directives on procedural safeguards of suspects and defendants in criminal proceedings.⁸ The remainder is a matter of respective national law.

Through the assignment system, the Regulation provides for cross-border cooperation in the gathering of evidence to be carried out between the EDPs in every Member State taking part in the EPPO: the EDP handling a case assigns the necessary investigative measure to one of the EDPs of the State in which it has to be carried out (Article 30(1) RegEPPO). The assisting EDP “shall undertake the assigned measure, or instruct the competent national authority to do so” (Article 31(4) RegEPPO).

The “assignment” is neither subject to any type of recognition procedure nor to any additional conditions. The authority providing the assistance does not oversee the need, adequacy, or proportionality of the measure (save for Article 31(5) lit. c) RegEPPO, see below) or of the ne bis in idem principle.⁹ The Regulation also does not include grounds for refusal to execute the assignment. Any circumstance that might appear to affect the execution of the measure shall be communicated by the assisting EDP to his/her supervisor and to the handling EDP.

While this system moves towards mutual recognition in the execution of the requested (assigned) investigative measure, it does not mean that the mutual recognition of evidence has improved. The single office will still have to act within a fragmented legal area. The original idea was to create a single area precisely to overcome the shortcomings of such fragmentation, which entail difficulties for both the prosecution and the accused persons: the former risks evidence obtained abroad being declared inadmissible, and the latter risks not being able to adequately check the legality of the evidence gathered abroad under the rules of a foreign legal system. In short, as regards evidence, the EPPO proceedings will be subject to the same fragmentation as any other transnational criminal proceedings in the EU territory at the moment.

Does this system provide for the “right balance” between more efficient supranational prosecution and protection of the rights of the defence in these cross-border investigations? First, from the point of view of the protection of fundamental rights, this double-check of the evidentiary measure requested (insofar as it has to comply with the lex loci and the lex fori) means compliance with the highest standard. If the assigned measure requires judicial authorisation in the issuing State, the EDP assigning the measure shall accompany the judicial warrant (Article 31(3) RegEPPO). If it is only required in the executing State, the assisting EDP shall obtain such authorisation. This approach is similar to the one provided for in the EIO Directive,¹⁰ as the principle of mutual recognition does not allow skipping judicial authorisation if it is needed under the laws either of the issuing or of the executing State. This system guarantees the application of the highest standard of protection for judicial authorisation.¹¹

Second, there is also the possibility that the assisting EDP conducts a certain proportionality test of the assigned measure. In terms almost identical to Article 10(3) of the EIO Directive, Article 31(5) lit. c) RegEPPO allows the assisting EDP to adapt the assignment to the proportionality principle: if the same results can be obtained through another less intrusive measure, he shall contact the handling EDP to resolve the matter bilaterally.

In my opinion, such an assignment system ensures an adequate balance. The problem is not the assignment system, but rather the weaker position of the defence in any transnational setting. From the viewpoint of the defence, apart from the fact that access to cross-border investigative measures might be quite difficult in practice, there are also complex hurdles to overcome in checking the legality of the evidence obtained abroad and thus ensuring compliance with the national rules on admissibility of evidence.¹²

How can defence be improved? Multi-level legal assistance should be granted to this end, with lawyers having knowledge of the different legal orders involved. The Directive on Access to a Lawyer (hereinafter: DAL),¹³ however, does neither address the right to defence in transnational criminal proceedings when evidence is collected in another Member State nor in the assessment of the necessity and proportionality of the evidence collected via assignment. Leaving aside the questioning of the suspect or accused, the DAL does not provide for legal assistance to be granted in both States except for the EAW (Article 10 DAL).

Ultimately, with regard to defendants who lack sufficient financial resources, the Directive on Legal Aid¹⁴ does not grant the right to a lawyer in the procedure of cross-border evidence gathering either. It should be emphasised that, except in cases of detention, the right to free access to a lawyer will only be granted according to the national law and will only be mandatory if “the interests of justice so require.”¹⁵ Among the cases that justify the granting of free legal aid, it would have been desirable if the Directive on Legal Aid had also included those cases in which evidence is gathered in another Member State, as such cases clearly entail an additional complexity for the defence.

In sum, even if the assignment systems could be viewed as balanced, assessed as a whole, does not ensure the adequate balance. As neither the EU Directive on Access to Lawyer nor the EU Directive on Legal Aid contribute to the adequate protection of the...