The EPPO and the equality of arms between the prosecutor and the defence1
| Published date | 01 March 2023 |
| DOI | http://doi.org/10.1177/20322844231157078 |
| Author | Vânia Costa Ramos |
| Date | 01 March 2023 |
| Subject Matter | Special Issue Articles |
Special Issue Article
New Journal of European Criminal Law
2023, Vol. 14(1) 43–70
© The Author(s) 2023
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DOI: 10.1177/20322844231157078
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The EPPO and the equality of
arms between the prosecutor
and the defence
1
Vˆ
ania Costa Ramos
Carlos Pinto de Abreu e Associados, Lisbon, Portugal; European Criminal Bar Association; Faculty of Law, University of
Lisbon, Portugal
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 L aw in EPPO proceedings. It
concludes with the author’s wish that the establishment of a single prosecution office will be counter-
balanced 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
EPPO, procedural rights, fair trial, effective remedies, legal assistance, legal aid, access to the case
files, access to a court
Corresponding author:
Vˆ
ania Costa Ramos, Alameda Quinta de Santo Antonio, 13-C, Lisboa, 1600-675, Portugal.
Email: vaniacostaramos@gmail.com
1. This Article corresponds to the text prepared for the oral intervention at the Conference “EPPO –One Year in
Action”, organised by the Faculty of Law,Economics and Finance of the University of Luxembourg, ECLAN, and
the EPPO. Therefore, it does not contain extensive literature references. The author is a defence lawyer and lecturer
at the Law Faculty,based in Lisbon, and currently Vice-Chair of the European Criminal Bar Association (‘ECBA’).
The views are solely of the author, unless otherwise indicated.
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 conceptused 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 thewhole of the criminal procedure, bothfrom 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 theaccused) and a more dynamic perspective(related to how the process unfolds and
how those involvedare given a possibility to influencethe Courts’decisions on the merits of thecase).
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.
Werethis tobe 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
2. See already Spencer, J.R., “Introduction”, in: M.Delmas-Marty/ J. R. Spencer, M., European Criminal Procedures, 2002,
pp. 1-81.
44 New Journal of European Criminal Law 14(1)
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