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(Hazánkért Online, April 2nd,
2003) The European Union Criminal Code that will overthrow
Habeas Corpus and Trial by Jury in UK
CORPUS JURIS
Part 1.
The
proposed European Union code for conducting criminal procedures known as Corpus
Juris was originally requested by the European Parliament and compiled by
a group of "academic experts" under the aegis of the European
Commission. Corpus Juris was first presented by the European Commission to a
specially invited audience at a Seminar of the Instituto Europeo de Espańa held on 17th and 18th April 1997, in
San Sebastián, Spain. The objectives of this Seminar were described in the official program as follows: "Firstly:
it seeks to call the attention of jurists in general to the need for
effective protection of the Community budget, particularly in connection with
fraud against subsidies; and Secondly:
the organizers wish to make known the content of the CORPUS JURIS for protection
of these financial interests which has been conceived as the embryo of a
future European Criminal Code." Final Statement
CORPUS JURIS
Introducing penal provisions for the
protection
of the financial interests of the European
Union
Ø Part 1. CRIMINAL LAW
[Offences
and Penalties] Ø Part 2. CRIMINAL PROCEDURE
[Investigation and Trial structures] Ø
Part 3.
Commentary COMMENTARY
[Dated: 1/1/1999] Ø Part 4. Resolution on the Corpus Juris Report Ø Part 5. Increased state surveillance 1 --- CRIMINAL LAW Article 1 -- Fraud in the Community Budget 1 -- Fraud affecting the budget of the
European Communities constitutes a criminal offence, both in the area of
expenditure and in the area of receipts, when one of the following acts has
been carried out either intentionally or by recklessness or by gross
negligence:
a) in connection with a grant or subsidy or the settlement of a fiscal
debt, presenting the competent authority with declarations which in important
respects are incomplete, imprecise, or based on false documents, in such a way as to risk harm to the
Community budget;
b) in the same context, omitting to provide information to the
competent authorities in breach of a requirement to provide such information;
c) diverting Community funds (subsidies or grants) obtained legally. 2 -- Any person who corrects or completes
a false declaration, or withdraws an application made based on false
documents, or who informs the authorities about facts that he has omitted to
reveal, before the act has been discovered by these authorities, is not
punishable. Article 2 -- Market-rigging
To rig the market when a decision is being made as to who shall be
awarded a contract constitutes criminal fraud where this is liable to harm
the financial interests of the Communities. The fraud consists of a secret
agreement between competitors over offers or threats or promises towards
competitors, or deceiving them, or colluding with the official responsible
for the decision. Article 3 -- Corruption
1 -- For the purposes of the present text
the term official covers any official whether "European" or
"national".
A "European" official means:
a) any person who is an official or an agent employed under contract
understood by the Staff Regulations;
b) any person placed at the
disposal of the European Communities by Member States or by any public or
private organization, who exercise functions equivalent to those exercised by
officials or other agents of the European Communities.
The expression "national official" is interpreted by
reference to the meaning of "official" or "public
officer" under the national law of the Member State where the person in
question holds this title for the purposes of application of its criminal
law. 2 -- Acts of passive and active
corruption are criminal offences if they harm or might harm the financial
interests of the European Communities. 3 -- Passive corruption is where an
official solicits or accepts, directly or via a third person, for himself or
a third person, any offer, promise or other advantage of whatever nature:
a) in order to carry out an official act or act relating to his
duties, in breach of his official obligations;
b) in order not to carry out an official act or act relating to his duties,
which he is officially required to perform. 4 -- Active corruption means where any
person makes or gives, directly, or via a third person, any offer, promise,
or other advantage of whatever nature, to an official, in his own interests
or in the interests of a third person:
a) to induce him to carry out an official act or act in relation to
his duties;
b) to induce him not to carry out an official act or act relating to
his duties which his official duties require him to carry out. Article 4 -- Abuse of office 1 -- A Community official commits a
criminal offence:
a) if he makes a decision on the award of a subsidy, grant or an
exemption from duty in favor of a person who clearly has no right to it;
b) if he intervenes, directly or indirectly, in the awarding of
subsidies, grants or exemption from duty in relation to any business or
operation in which he has some personal interest. 2 -- The penalty is increased when the
damage caused amounts to more than 100 000 ECU. Article 5 -- Misappropriation
of funds
1 -- It is a criminal offence for
Community officials to commit a breach of trust in administering funds from
the Community budget. The offence is committed when a Community official
formally authorized to allocate funds from the Community budget, or to
contract out requirements on behalf of the Community abuses his powers by
harming those interests entrusted to him. 2 -- The penalty is increased when the
damage caused amounts to more than 100 000 ECU. Article 6 -- Disclosure of secrets pertaining to one's office 1 -- It is a criminal offence for an
official improperly to reveal secrets pertaining to his office, when the secret
concerns information acquired in, or by virtue of, his professional activity,
particularly when monitoring receipts or awarding grants and subsidies. 2 -- This provision is not applicable in
cases where the law, or a regulation, imposes or authorizes disclosure of the
secret, or if there is the consent of the person who is guardian of the
secret. Article 7 -- Money laundering
and receiving
1 -- It is a criminal offence to launder
the fruits or the profits of offences described in Articles 1 to 6.
Laundering means:
a) the conversion or transfer of goods resulting from any of the
criminal activities mentioned in the previous paragraph or participation in
such activity with the aim of concealing or disguising the illicit origins of
the said goods or of helping any person involved in this activity to escape
the legal consequences of his acts;
b) the concealing or disguising of the nature, origin, site, placing,
disposal, movements, or the real ownership of goods or rights resulting from
any criminal activity mentioned in the previous paragraph, or participation
in such an activity. 2 -- It is a criminal offence to receive
products or profits from the offences set out in Articles 1 to 6.
Receiving means the acquisition, keeping or use of goods from any of
the criminal activities mentioned in the previous paragraph or participation
in such an activity. Article 8 -- Conspiracy
1 -- Conspiracy that harms the
Community’s budget constitutes a criminal offence. 2 -- Conspiracy is when two or more
persons work together, setting up the necessary organization, with a view to
carrying out one or more of the offences set out in Articles 1 to 7. Article 9 -- Penalties
1 -- The principal penalties, common to all
offences set out in Articles 1 to 8, are as follows:
a) for natural persons, a custodial sentence for a maximum of five
years and/or a fine of up to one million ECU, which may be raised to five
times the amount involved in the offence;
b) for organizations, legal supervision for a maximum of five years
and/or a fine of up to one million ECU, which may be raised to five times the
amount involved in the offence;
c) confiscation of the instruments, fruits and profits of the offence;
d) publication of the
conviction. 2 -- Additional penalties for the same
offences are as follows:
a) for an offence under Article 1, exclusion from future subsidies for
five years at most;
b) for an offence under Article 2, exclusion from future contracts for
five years at most;
c) for offences under Articles 3 to 6, a ban from Community and
national public office for up to five years. Article 10 -- Mens rea
All the offences set out above (Articles 1 to 8) require intention or
fraud, with the exception of Community fraud (Article 1) for which
recklessness or gross negligence is sufficient. Article 11 -- Error
1 -- Mistake about the essential elements
of the offence excludes fraud; but recklessness and gross negligence may
nevertheless be sanctioned in the case of Community fraud (see above, Article
1). 2 -- Mistake about the existence of a
legal prohibition or its interpretation excludes liability if it would have
inevitably been committed by a careful, sensible person. If the mistake was
avoidable, the penalty will be reduced, which means that the judge may not
impose the maximum penalty (see above, Article 9). Article 12 -- Individual
criminal liability
1 -- Any person may be held responsible
for the offences defined above (Articles 1 to 8) as a principal offender,
inciter or accomplice;
a) as principal offender, if he commits the incriminating facts or
participates, as co-offender, in committing the offence;
b) as an inciter if he, by means of a bribe, promise, threat, order,
abuse of authority or power provokes the offence or gives instructions for it
to be committed;
c) as an accomplice if he knowingly, by providing assistance,
facilitates the preparation or the commission of the offence. Article 13 -- Criminal liability of the head of a business 1 -- If one of the offences defined above
(Articles 1 to 8) has been committed for the benefit of a business by a
person subject to their authority, the head of the business is also
criminally liable, and any other person with powers of decision or control
within the business, if he has knowingly given orders, allowed the offence to
be committed or omitted to exercise the necessary supervision. 2 -- The delegation of powers and
criminal liability is only valid as a defense if it is partial, precise and
specific, if it corresponds to a structure necessary for the running of the
business and if the delegates are really in a position to be able to fulfill
the functions delegated to them. Such delegation does not exclude the general
responsibilities of monitoring, supervision and selection of personnel, and
does not include matters proper to the head of the business such as general
organization of work within the business. Article 14 -- Criminal liability of
organizations 1 -- The offences defined in Articles 1
to 8 above may be committed by corporations, and also by other organizations
which are recognized by law as competent to hold property in their own name,
provided the offence is committed for the benefit of the organization by some
organ or representative of the organization, or any person acting in its name
and having power, whether by law or merely in fact, to make decisions. 2 -- Where it arises, the criminal
liability of an organization does not exclude that of any natural person as
author, inciter or accomplice to the same offence. Article 15 -- Extent of the
penalty
The penalties applicable to the offences set out above (Articles 1 to
8) are to be imposed in accordance with the seriousness of the act, the fault
of the offender and the extent of his participation in the offence. In
particular the previous life of the accused, any previous offences, his
character, his motives, his economic and social situation, and his efforts to
make amends for he damage caused will all be taken into account. Article 16 -- Aggravating
circumstances
1 -- The following constitute aggravating
circumstances:
a) the fraudulent result is achieved;
b) the amount of the fraud or profit sought through the offence
exceeds 200 000 ECU;
c) the offence is carried out in the context of a conspiracy. 2 -- Where aggravating circumstances
exist, a custodial sentence (or as the case may be, placing under legal
supervision) is mandatory, and the maximum length of the penalty incurred is
increased to seven years. Article 17 -- Penalties incurred in the case of concurrent offences 1 -- Where one person is liable for
several offences as defined above Articles 1 to 8), a single penalty shall be
applied, determined on the basis of the penalty which would have been
incurred for the most serious offence, and increased by up to three times
that amount; a penalty determined in this way shall not exceed the sum of the
penalties which could have been inflicted separately for each
offence. 2 -- When a single act constitutes a
criminal offence under both Community regulations and national laws, only
Community regulations are to be applied. 3 -- In all other cases of concurrent
offences, the competent authorities must, in determining the penalty, take
into account penalties already imposed for the same act. +++ ------------ Dr. Gaudi-Nagy Tamás ügyvédEurópa jogi szakjogászIroda:
H-1095 Budapest, Gabona u. 10. II. em. 1. Tel: (36-1) 216-3088, Tel/fax: (36-1) 216-2261,
mobil: (36) 20-916-5230 E-mail: drgaudi@drgaudi.hu <www.drgaudi.hu> |