The European public prosecutor’s office and the judicial review of criminal prosecution
| Published date | 01 September 2017 |
| Date | 01 September 2017 |
| DOI | http://doi.org/10.1177/2032284417729934 |
| Subject Matter | Articles |
Article
The European public
prosecutor’s office
and the judicial review
of criminal prosecution
Ante Novokmet
Josip Juraj Strossmayer University of Osijek, Croatia
Abstract
In relation to the pending negotiations over the establishment of a European public prosecutor’s
office (hereinafter, EPPO) as well as its role and structure, one often faces the question of the
accountability and judicial review of the prosecutor’s prosecutorial and investigative functions.
More precisely, it seems that it is not clea r who should exercis e the review, what ne eds to be
reviewed and when such a review should be engaged. Moreover, the draft provisions on the
judicial review have been amended several times. This article is aimed at depicting the current
state of the subject matter and the main issues under discussion with an emphasis on the issue of
judicial review of criminal prosecution in pretrial proceedings. The starting point is the
hypothesis that the EPPO’s decision to initiate an investigation really represents a decision on
the initiation of criminal prosecution, and as such, it needs to be subject to judicial review. This
hypothesis is substantiated by the right to effective judicial review enshrined in Article 47 of the
Charter of fundametnal rights of the EU, the right to judicial review in the Treaty on the
Functioning of the European Union and an analysis of the principle of mandatory prosecution
considering the impact of investigations initiated by the EPPO on the fundamental human rights
of suspected persons.
Keywords
European public prosecutor’s office, criminal prosecution, principle of mandatory prosecution,
pretrial procedure, judicial review
Corresponding author:
Ante Novokmet, Chair of Criminal Law, Faculty of Law Osijek, Josip Juraj Strossmayer University of Osijek, Osijek, Croatia.
E-mail: ante.novokmet@pravos.hr
New Journal of European Criminal Law
2017, Vol. 8(3) 374–402
ªThe Author(s) 2017
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DOI: 10.1177/2031952517729934
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Introduction
Since the European Commission presented a proposal for a Council Regulation on the Establish-
ment of the European public prosecutor’s office (EPPO; hereinafter, Commission’s Proposal)
1
in
July 2013, there has been significant progress in establishing a body that is to be in charge of the
systematic prosecution of the perpetrators of crimes against the financial interests of the European
Union
2
(hereinafter, EU).
3
By doing so, the EU has not only interfered with the jealously guarded
sovereignty of the member states in regard to the prosecution and punishment of the perpetrators
4
but has also embraced a heavy burden of responsibility, which the position of a body in charge of
ex officio prosecution implies.
5
Although the proposal has opened up a vast space for questions, the issue of judicial review of
criminal prosecution is particularly emphasized within the context of the establishment of the
EPPO.
6
This is an exceptionally delicate and complex issue that not only encompasses granting
citizens the right to judicial review over criminal prosecution and the establishment of a body in
charge of EPPO review but also a complicated estimate of the scope of the EPPO’s autonomous
powers. Furthermore, it establishes a line which, if the prosecutor crosses it by any action or
intervention focused on initiating and conducting criminal proceedings that interfere s with an
individual’s rights and freedoms, indicates the right of that individual to insist on judicial review
over the pertaining prosecution. One should not forget that the EPPO was devised as a
1. Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, 17 July 2013, COM
(2013) 534 final. The last version publicly available of the draft Regulation at the time of writing is document 5766/17,
31 January 2017.
2. L.B. Winter, ‘The Potential Contribution of a European Public Prosecutor in Light of the Proposal for a Regulation of 17
July 2013’, European Journal of Crime, Criminal Law and Criminal Justice 2 (2015), pp. 126–144.
3. The idea of establishing an EPPO has been developing for years, first in the 1997 Corpus Juris, which resulted in a mini-
criminal code for the protection of the Community’s financial interests, and then in the 2001 Green Paper on criminal
law protection of the financial interests of the community and the establishment of a European Prosecutor. Later, in
2004, the establishment of an EPPO was proposed in Article III-274 of the Constitutional Treaty, but since the ratifi-
cation thereof did not end well, the legal ground for the establishment of an EPPO was finally brought to daylight in
Article 86 of the TFEU. V. Mitsilegas, EU Criminal Law (Oxford: Hart, 2009), pp. 229–231.
4. However, this restrains criminal law sovereignty only as far as allowed by the narrow scope of criminal offences over
which the jurisdiction of the EPPO will be exerted. Yet, there is no doubt that this made the member states recognize the
inefficiency and insufficiency of the autonomous national prosecution of the perpetrators of crimes against the Union’s
financial interests. Z. Ðurd
¯evic´, ‘Criminal Law Protection of the European Union’s Financial Interests (according to the
working Draft Proposal of the Criminal Code of 21 October 2010.)’, Croatian Annual of Criminal Law and Practice 2
(2010), p. 770.
5. It is certain that the biggest responsibility of the EU in this view refers to the issue of achieving a perfect balance between
the aspiration to efficient criminal prosecution and the yearning for fundamental human rights and freedoms protection.
What is crucial here is the institutional design of the EPPO and the issue of itsautonomy and independence from national
governments and from EU institutions on the one hand and, on the other hand, which body would be competent (and to
what extent) for reviewing criminal prosecution and investigation by the EPPO in order to prevent arbitrary criminal
prosecution. For a detailed analysis of the three ideal-type models of the institutional design of the EPPO, see K. Ligeti
and M. Simonato, ‘The European Public Prosecutor’s Office: Towards a Truly European Prosecution Service?’ New
Journal of European Criminal Law 1–2 (2013), pp. 12–17.
6. For analysis of the scope and type of judicial involvement in investigations initiated by the EPPO see Z. Ðurd
¯evic´,
‘Judicial Control in Pre-Trial Criminal Procedure Conducted by the European Public Prosecutor’s Office’, in K. Ligeti,
ed., Towards a Prosecutor for the European Union (Oxford: Hart, 2013), pp. 988–1002.
Novokmet 375
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