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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
Part 2.
CORPUS JURIS
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 2 --- CRIMINAL PROCEDURE
Article 18 _ Status and Structure of the European Public Prosecutor (EPP) 1 -- For the purposes of investigation,
prosecution, trial and execution of sentences concerning the offences set out
above (Articles 1 to 8), the territory of the Member States of the Union
constitutes a single legal area. 2 -- The EPP is an authority of the
European Community, responsible for investigation, prosecution, committal to
trial, presenting the prosecution case at trial and the execution of
sentences concerning the offences defined above (Articles 1 to 8). It is
independent as regards both national authorities and Community institutions. 3 -- the EPP consists of a European
Director of Public Prosecutions (EDPP) whose offices are based in Brussels
and European delegated Public Prosecutors (EDelPP) whose offices are based in
the capital of each member state, or any other town where the court
sits on application of Article 26. 4 -- The EPP is indivisible and
interdependent:
a) indivisibility implies that any act undertaken by one of its
members is taken as done by the EPP; that all acts which fall within the
competence of the EPP (particularly powers of investigation as set out under Article 20) may be undertaken by any one
of its members; and that, with the agreement of the EDPP, or in emergencies
where he retrospectively approves, any of the EDelPPs may exercise his duties
on the territory of any of the Member States, in collaboration with the
offices of the EDelPP in that Member State;
b) interdependence requires, on the part of the different EDelPPs, an
obligation to assist each other. 5 -- National Public Prosecutors (NPP)
are also under a duty to assist the EPP. Article 19 _
Seizing of the EPP and opening of proceedings 1 -- The EPP must be informed of all acts
which could constitute one of the offences defined above (Articles 1 to 8),
by the national authorities (police, public prosecutors, juges d'instruction,
agents of national administrations such as tax or Customs authorities) or by
the competent Community body, the Commission's Anti-Fraud Unit (UCLAF). It
may also be informed by denunciation from any citizen or by complaint from
the Commission. National authorities must seize the European Prosecution
Service at latest when the suspect is formally "under
investigation", under Article 29(2), or when coercive measures are
employed, particularly arrest, searches and seizures or when a person's
telephone is to be tapped. 2 -- If an investigation conducted by a
national authority reveals that one of the offences above (Articles 1 to 8)
has been committed, the dossier must be immediately submitted to the EPP. 3 -- However the EPP learns about the
facts, it may be officially seized either by the national authorities or by
acting on its own initiative. 4 -- The decision to prosecute, which
means opening an investigation, may be taken by the EPP whatever the sum of
the fraud involved. The EPP, bound by the legality principle, must bring a
prosecution if it appears that one of the offences (Articles 1 to 8) has been
committed. It may, however, by a decision with special grounds communicated
immediately to the person who has informed it, or denounced it to its
officials or laid a complaint:
a) either refer offences which are not serious or which affect
principally national interests to the national authorities;
b) or drop the case, if the accused, having admitted guilt, has made
amends for the damage caused and, as the case may be, returned funds received
illegally;
c) or grant an authorization for settlement to a national authority
which has applied for it, according to the conditions set out below (Article
22[2b]). Article 20 _ Powers of investigation of the EPP 1 -- In order to discover the truth and
to bring the case to a point where it may be tried, the EPP conducts investigations
into the offences defined above (Articles 1 to 8) looking for evidence of
innocence as well as for evidence of guilt (ŕ charge et ŕ décharge). Its
powers are divided between the European Director of Public Prosecutions
(EDPP), the European Delegated Public Prosecutors (EDelPP) and, as may be,
national authorities appointed for this purpose, according to the
following rules. 2 -- The EDPP's own powers include:
a) overseeing investigations and their delegation to one or more
EDelPP, in accordance with the conditions and restrictions set out below
(Article 20(3)).
b) the coordination of investigations undertaken by the EDelPP as well
as by national police forces and competent national administrations and, as
may be, UCLAF; this coordination may take the form of oral or written
recommendations to the relevant authorities;
c) the right to call in cases where the investigation reveals that
they concern in whole or in part offences defined above (Articles 1 to 8). 3 -- All the following powers may either
be exercised by the EDPP or delegated to EDelPP, where there is an
investigation into offences set out in Articles 1 to 8:
a) questioning of the suspect, under conditions which respect his
rights as set out below (Article 29);
b) collection of documents and /or computer-held information necessary
for the investigation and, if need be, visits to the scene of the offence;
c) request addressed to the judge to order an expert enquiry under the
conditions set out below (Article 31);
d) searches, seizures and telephone tapping ordered in accordance with
the rule below (Article 25), on authorization from a judge or with his
subsequent permission, and undertaken with respect for the rights of the
accused (Article 31);
e) hearings of witnesses who agree to cooperate with the law and, as
may be, witnesses obliged to appear in accordance with the conditions below (Article 25);
f) notification of charges to the accused, with respect for the rights
set out below (Article 29);
g) to make requests for a person's remand in custody or remand on bail
subject to conditions, for a period of up to 6 months, renewable for 3
months, where there are reasonable grounds to suspect that the accused has
committed one of the offences defined above (Articles 1 to 8) or good reasons
for believing it necessary to stop him from committing such an offence or
from fleeing after committing it; this order, in writing and giving reasons, must be addressed to the
competent national legal authorities in accordance with the rules below
(Articles 24 and 25), the execution of the measures being organized in the
country where the arrest was made. 4 -- Powers delegated to the EDelPP may
be partially subdelegated (limited ratione materiae et ratione temporis) to a
national authority (prosecuting authority, police, or any other competent
administration such as the tax or customs authorities) who will be bound to
respect all the rules contained in this European Corpus. Article 21 _ Closure of the preparatory stage 1 -- When he considers investigations to
be completed, the EDelPP decides, under the authority of the EDPP, either to
make a decision not to prosecute, or to bring the case to court. 2 -- The decision not to prosecute is
notified to the European Commission, to the accused, and to any body or
person who informed the EPP, denounced the offence to its officials or
brought a complaint, as defined above (Article 19(4)). 3 -- The decision to bring the case to
court, notified under the same conditions as non-prosecution (Article
212(2)), includes the name and address of the accused, a description of the
acts and the offence so committed, and also states where the case is to be
tried. It passes into the control of the competent national legal authority
in accordance with the rules set out below (Article 25) which, after
establishing the lawfulness of the proceedings, seizes the court with
jurisdiction and sends a summons to the accused stating the date and the time
he is to appear. Article 22 -
Bringing and terminating a prosecution 1 -- For the offences set out above
(Articles 1 to 8), the EPP prosecutes at the court of trial (selected as
indicated hereafter, Article 26), according to the laws in the relevant
state. The national prosecuting party may if appropriate prosecute with him,
if national interests are also under threat. In such a case, notices and
summons are also addressed to the national prosecuting party and the dossier
is sent out to it in good time. 2 -- For the same offences, the
prosecution is extinguished (ruling out any national pardon or amnesty) on
the death of the defendant (or if it concerns a group, the dissolution of the
group), or by expiry of the limitation period or by settlement:
a) there is a limitation period of five years, calculated from the day
when the offence was committed if within this time there has been no
investigation or prosecution; if investigation or prosecution have taken
place, the offence is only time-barred from five years after the last act of
investigation or prosecution. In all cases, notification of the charges to
the suspect interrupts the limitation period;
b) settlement is ruled out in the case of repeated offences, where
arms or forgery were used, or if the sum involved is 50 000 ECU or more. In
other cases, it may be proposed by the national authorities to the EPP, both
for cases under national jurisdiction (cf. Article 19(4a)), and cases under
European jurisdiction, according to the following conditions: the defendant
freely admits his guilt, the authorities have sufficient evidence of guilt to
justify committal to trial, the decision to come to a settlement is made
publicly, and the agreement concluded respects the principle of
proportionality. In the case of refusal, the EPP must, if there are grounds,
call in the case. Article 23 - Execution of sentences 1 -- When a conviction becomes
definitive, it is immediately communicated by the EPP to the authorities of
the Member State, which is appointed as the place of execution of the
decision; certain penalties such as confiscation, removal of rights or
publication of the conviction may be carried out in one or more places other
than the place of imprisonment. The EPP is responsible, alongside the
competent national authority, for ordering and overseeing the implementation
of the sentence if this is not automatic. In principle, execution of the
penalties is governed by the laws in force in the Member State appointed as
place of execution of the sentence. However, the EPP oversees the application
of the following common rules across the whole territory of the States of the
European Union:
a) any period spent in custody by the accused on account of the same
acts, in any State and at any point of the procedure, is deducted from the
custodial sentence pronounced by the court of judgment;
b) no person may be prosecuted or criminally convicted in a Member
State by reason of one of the offences defined above (Article 1 to 8) for
which he has already been either acquitted, or convicted by a definitive
judgment, in any of the Member States of the European Union;
c) any sentencing decision relating to one of the offences outlined
above (Articles 1 to 8) must take into account in determining the penalty the
rules set out above (Article 17) on concurrent offences[:]? 2 -- The EPP may, if there are grounds,
authorize a transfer if a convicted person with a custodial sentence asks to
be imprisoned in a Member State other than the one named by the conviction. Article 24 - Competence ratione loci 1 -- In the single legal area as defined
in Article 18(1), competence ratione loci is exercised according to the
following rules:
a) members of the EPP appointed by the EDPP to bring prosecutions and
conduct investigations into cases in accordance with the conditions set out
above (Article 18 et seq.) have competence across the entire territory of the
European Union (cf. Article 18(4));
b) a European warrant for arrest, issued on the instructions of the
EPP by a national judge (cf. Article 20(2e)) is valid across the whole
territory; any person arrested thus may be transferred to the territory of a
State where he is required to be (during the preparatory stage or at trial);
c) judgments relating to the offences set out above made by the courts
of any of the Member States are valid across the whole territory of the
Union. 2 -- If investigations require legal
cooperation of any kind from a third state, the EPP requests the national
authorities of the principal country where investigations are taking place to
apply to the third state concerned, following the procedure laid down by the
national and international legal instruments in force. Article 25 - Preparatory stage
1 -- The preparatory stage of proceedings,
opened with regard to the offences defined above (Articles 1 to 8), lasts
from the initial investigations conducted by the EPP until the decision to
commit the case to trial (above article 21(3)). Throughout this stage,
judicial control is exercised by an independent and impartial judge, the
"judge of freedoms", appointed by each member State from the court
where the EdelPP is based. This judge is also competent to rule on whether
the Commission is entitled to constitute itself a "partie civile"
(cf. Article 30) and also to order, as needed, measures to preserve matters
or things which are the subject of the case, when the necessity for this
cannot be seriously disputed, and when such measures are necessary to
preserve civil interests and proportional to them. 2 -- During the course of an
investigation into the offences set out above (Articles 1 to 8), the coercive
measures listed under Article 20(3) are admissible. However, any measure
restricting rights and fundamental freedoms recognized by the European
Convention on Human Rights which is taken at this stage and which affects a
witness or the accused must first be authorized by the judge of freedoms, who
checks that the measure is lawful and regular as well as that the principles
of necessity and proportionality are respected; however, an a posteriori authorization in
the following forty-eight hours is allowed in an emergency, particularly
where clues might disappear, where the offence is in the process of being
committed, or where there is a risk that the suspect will escape from the
law. 3 -- At the end of the preparatory stage,
if he decides to commit the case to trial (cf. Article 21(1&3)), the EDPP
submits this decision to the judge of freedoms who checks the lawfulness of
all the proceedings, excludes if necessary any evidence obtained in breach of
the rules below (Article 32) and seizes the court of trial according to the
rules set out hereafter (Article 26). Article 26 - Judgment stage 1 -- The offences set out above (Articles
1 to 8), are tried by national, independent and impartial courts, appointed
by each Member State according to the rules on competence ratione materiae of
the national law, sitting at the centres where the EdelPP is based. The
courts must consist of professional judges, specializing wherever possible in
economic and financial matters, and not simple jurors
or lay magistrates. 2 -- Each case is judged in the Member
State which seems appropriate in the interests of efficient administration of
justice, any conflict of jurisdiction being settled according to the rules
set out hereafter (Article 28). The principle criteria for the
choice are the following:
a) the State where the greater part of the evidence is found;
b) the State of residence or of nationality of the accused (or the
principal persons accused);
c) the State where the economic impact of the offence is the greatest. 3 -- On application of the general rule
on the subsidiary of national law (Article 35), national courts must refer to
the rules in the European corpus and if there is a lacuna, apply the national
law. They are bound in all cases to give grounds for the penalty by reference
to circumstances pertaining to the particular case, applying the rules set
out above (Articles 15 to 17). Article 27 - Appeal to national
courts
1 -- Any conviction pronounced against a
person declared guilty of one of the offences set out above (Articles 1 to 8)
must be subject to appeal by the convicted person leading to the case being
retried, in law and in fact, by a higher court of the State where the
conviction was pronounced at first instance; the higher court must apply, as
the court of first instance, the rules set out in the European corpus and, in
the case of a lacuna, must apply national law. 2 -- In the case of total or partial
acquittal, appeal is also open to the EPP as a prosecuting party; the
Commission may be joined to it, as partie civile, based on civil interests
only. 3 -- In the case of appeal by the
convicted person alone, the court seized may not pronounce a stiffer penalty. Article 28 - Appeal to the European Court of Justice (ECJ) 1 -- The Court of Justice has
jurisdiction to rule on offences as defined above (Articles 1 to 8) in three
cases:
a) preliminary questions on the interpretation of the corpus and any
application measures;
b) on the request of a Member State or the Commission on any dispute
concerning the application of the corpus;
c) on the request of the EPP or a national legal authority on
conflicts of jurisdiction regarding application of the rules on the principle
of European territoriality, concerning both the public prosecution service
(Articles 18 and 24) and the exercise of judicial control by national courts (Articles 25 to 27). 2 -- When a question of interpretation is
raised or a conflict of jurisdiction brought before a court of one of the
Member States, this court may, if it considers that a decision on this point
is necessary in order to give its judgment, call on the Court of Justice to
rule on the issue. 3 -- When an issue or conflict such as
this is raised in a case pending before a national court whose decisions are
not subject to appeal in national law, this court is bound to seize the Court
of Justice. Article 29 - Rights of the
accused
1 -- In any proceedings brought for an
offence as set out above (Articles 1 to 8), the accused enjoys the rights of
the defense guaranteed by Article 6 of the European Convention on Human
Rights and Article 10 of the UN International Covenant on civil and political
rights. 2 -- A person may not be heard as a
witness but must be treated as accused from the point when any step is taken
establishing, denouncing or revealing the existence of clear and consistent
evidence of guilt and, at the latest, from the first questioning by an
authority aware of the existence of such evidence. 3 -- From the time of his first
questioning, the accused has the right to know the content of the charges
against him, the right to be assisted by a defense lawyer of his choice, and,
if necessary, an interpreter. He has the right to remain silent. Article 30 -
Rights of the Commission as partie civile 1 -- Where the Community is the victim of
damage directly caused by one of the offences set out above (Articles 1 to
8), the European Commission may constitute itself partie civile before the
competent judge, either at the preparatory stage, or at the opening of the
trial. It may ask the judge to take preservation measures and, as the case
may be, order compensation for the damage. 2 -- Once the partie civile is declared
admissible, the Commission is entitled to the rights and prerogatives of a
party to the proceedings; receiving the dossier, notification of procedural
steps, assistance by a lawyer, presence at the hearing, participation in the
administering of the evidence, exercise of the right to appeal as far as its
civil interests are concerned (cf. Article 27). Article 31 - Burden of proof 1 -- Any person accused of one of the
offences set out above (Articles 1 to 8) is presumed innocent until his guilt
has been established legally by a final judgment which has acquired the
authority of res judicata. 2 -- Subject to the obligation to produce
certain documents which may be required under national or Community law, no
person is obliged to actively contribute, directly or indirectly, in
establishing his own guilt. Article 32 - Admissible evidence 1 -- In Member States of the European
Union, the following evidence is admitted:
a) testimony, either direct, or presented at the trial via an
audio-visual link if the witness is in another Member State, or recorded by
the EPP in the form of a "European deposition". For the latter, the
witness must be examined before a judge, the defence lawyer must be present
and allowed to put questions, and the operation must be recorded on video;
b) questioning of the accused, either direct or recorded by the EPP in
the form of a "European interrogation report". For the latter the
questioning must take place before a judge, that the accused must be assisted
by a defense lawyer of his choice (who has received the dossier in good time
and at the latest 48 hours before the questioning) and, if necessary, by an interpreter; in
addition, the operation must be recorded on video;
c) statements made by the accused, outside the interrogations
previously mentioned, as long as they have been made before the competent
authority (EPP or judge), and that the accused has first been informed of his
right to silence and his right to be assisted by a defense lawyer of his
choice and that the statements have been recorded in some way;
d) documents presented by an official accountant, appointed by the
competent court from individuals or corporations appearing on a European list
approved by the Member States on the proposal of the EPP, either during the preparatory stage, or at the
beginning of the trial;
e) documents that the accused has been required to produce in a
preliminary administrative investigation, unless such an obligation is
accompanied by criminal sanctions. 2 -- These provisions do not exclude the
validity of other forms of evidence considered as admissible under the
national law in force in the State of the court of judgment. Article 33 -
Exclusion of evidence illegally obtained 1 -- In proceedings for one of the
offences set out above (Articles 1 to 8) evidence must be excluded if it was
obtained by Community or national agents either in violation of the
fundamental rights enshrined in the ECHR, or in violation of the European
rules set out above (Articles 31 and 32), or in violation of applicable
national law without being justified by the European rules previously set
out. 2 -- The national law applicable to
determine whether the evidence has been obtained legally or illegally must be
the law of the country where the evidence was obtained. When evidence has
been obtained legally in this sense, it should not be possible to oppose the
use of this evidence because it was obtained in a way that would have been
illegal in the country of use. But it should always be possible to object to
the use of such evidence, even where it was obtained in accordance with
the law of the country where it was obtained, if it has nevertheless violated
rights enshrined in the ECHR or the European rules (Articles 31 and 32). Article 34 _ Publicity and secrecy 1 -- Investigations carried out under the
authority of the E.P.P. are secret and authorities participating in these
investigations are bound to respect the rule of professional secrecy. 2 -- Hearings before the judge of
freedoms may be published if all parties consent to it, unless publicity
would be likely either to harm either the smooth running of the
investigation, or to damage the interests of a third party, or endanger
public order or morals. In any case, the media are banned from publishing
information at this stage relating to the evidence. 3 -- The judgment must be given publicly,
but access to the court may be denied to the press and the public, during all
or part of the proceedings, under the conditions stipulated in Article 6(1)
ECHR. Publicity may include recording and broadcasting the proceedings audio
visually if the national law of the State concerned allows it and under the
conditions which it imposes. Article 35 _ Subsidiary of national law with regard to the European corpus The corpus of rules set out above
concerning both substantive law (Articles 1 to 17) and procedure (Articles 18
to 34) applies across all the territory of Member States of the European
Union. Where there is a lacuna in the corpus, the law applied is that of the
place where the offence is prosecuted, committed to trial or, as the case may
be, where the sentence is carried out. ++++ [END OF CORPUS JURIS] ------------ 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> |