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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 4
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 The
following Resolution on the Corpus Juris Report
was
debated in the European Parliament on 12 April 1999.
The
motion to adopt the resolution received an overwhelming
majority
of 399 in favor, 48 against and 35 abstentions
REPORT: On criminal
procedures in the European Union (Corpus Juris) FROM: Committee
on Civil Liberties and Internal Affairs RAPPORTEUR:
Mr. Jan-Kees Wiebenga ~ AT the sitting of 15 May 1998, in
response to a request from the Conference of Committee Chairs, the
President of Parliament announced that the Committee on Civil Liberties and Internal
Affairs had been authorized to submit a report on criminal procedures in
the European Union (Corpus Juris). ~ AT the sitting of 14 September 1998 the
President of Parliament announced that the Committee on Budgetary Control
had been asked for its opinion. ~ THE Committee on Civil Liberties and
Internal Affairs appointed Mr Wiebenga rapporteur at its meeting of 19
March 1998. ~ IT considered the draft report at its
meetings of 29 June 1998, 23 September 1998, 26 January 1999 and 17
February 1999. ~ AT the last meeting it adopted the
motion for a resolution unanimously. ~ THE following took part in the vote:
d'Ancona, chairman; Wiebenga, vice-chairman and rapporteur; Bontempi,
Cederschiöld, Ceyhun, Gomolka (for Deprez), Lindholm (for Orlando), Matikaďnen
(for Reding), Mendes Bota, Nassauer, Pirker, Stewart-Clark, Terrňn I Cusí, Van Lancker, Wilson (for Elliott) and Zimmermann. ~ THE Committee on Budgetary Control
decided on 20 January 1999 not to deliver an opinion. ~ THE report was tabled on 8 March 1999. ~ THE deadline for tabling amendments
will be indicated in the draft agenda for the relevant part-session. v MOTION FOR A RESOLUTION
RESOLUTION ON CRIMINAL PROCEDURES
IN THE EUROPEAN UNION (CORPUS JURIS)
The European Parliament, -- having regard to the European
Convention for the Protection of Human Rights and Fundamental Freedoms signed on
4 November 1950, and the protocols annexed thereto, and to the Conventions
concluded within the framework of the Council of Europe, in particular those
of 13 September 1957 on Extradition, of 20 April 1959 on Mutual Assistance on
Criminal Matters, and of 27 January 1997 on the Suppression of
Terrorism, -- having regard to Article 6 of the
Treaty on European Union, as amended by the Treaty of Amsterdam, according to
which the European Union is founded on the principles of liberty, democracy,
respect for human rights and fundamental freedoms, and the rule of
law, principles which are common to the Member States, -- having regard to the new Title VI of
the Treaty on European Union, as amended by the Treaty of Amsterdam, and,
in particular, to Articles 29-31, 33-35, 39, 43 and 44 thereof, -- having regard to its previous
resolutions on criminal law and on judicial cooperation in the field of criminal law, -- having regard to the Action Plan on
the establishment of an area of freedom, security and justice, adopted by
the Council of the Union (Doc. 12028/5/98 JAI 31 REV 5) and approved by
the Vienna European Council of 11 and 12 December 1998, and to the
Commission communication (COM(1998) 459) of 14 July 1998 on the same subject, -- having regard to Rule 148 of its Rules
of Procedure, -- having regard to the report of the
Committee on Civil Liberties and Internal Affairs (A4-0091/99), A.
whereas the increase in crime has resulted in the Member States asking the European Union to accept the
challenge of finding suitable strategies to prevent and combat crime, while at the
same time maintaining a high level of security for its citizens and avoiding,
where possible, the creation of disparities in treatment between one
Member State and another, B.
whereas the conventions concluded previously cover only the most
urgent problems but do not tackle them in depth,
and whereas, furthermore, those conventions are difficult to implement
because of the cumbersome procedures involved and the time required for their
ratification by the 15 Member States, C.
whereas the Council has been content merely to issue a policy declaration, without taking any specific
follow-up measures, and whereas the legal instruments used by the Council are
scarcely binding on the Member States and, what is more, are very
superficial compared with the efficient resources available under the first
pillar, D.
whereas it is for the European Institutions to promote the debate on
the adaptation of national legal systems in
the field of criminal law and criminal procedure, with due respect
being paid to the legal traditions of the Member States, E.
whereas the Convention of 26 July 1995 on the Protection of the
European Communities' Financial Interests and the
proposed joint action seeking to make membership of a criminal
organization a criminal offence set the Member States on the path towards establishing
uniform definitions of what constitutes a criminal offence, which will
facilitate police cooperation and judicial cooperation in criminal matters, F.
whereas the Treaty of Amsterdam has equipped the European Union with
new instruments with which to combat the most serious forms of crime, in particular through the introduction of
minimum rules relating to the constituent elements of criminal acts and to
the penalties applicable, with a view to providing the public with a high
level of protection in a common legal and judicial area, G.
whereas cross-border crime is difficult to prosecute, in particular because of the differences between legal
procedures in the Member States, H.
whereas, in its conclusions, the European Council of 11 and 12 December 1998 called for a strengthening of EU
action against organized crime (point 89 of the conclusions of the Vienna
Summit), I.
whereas the fundamental principles and the existing body of criminal case-law should inform the negotiations
being conducted with a view to the enlargement of the Union so as to ensure
that criminal law and judicial systems in the applicant countries are
brought into line with those of the Community, J.
whereas recent events, such as the Öcalan and Pinochet cases, give increasing grounds for a review of the
urgent need to establish mechanisms for cooperation in the field of criminal
law based on minimum common standards and on increased cooperation
between Member States, K.
whereas all police authorities, whether at local, national or European level, must be subject to proper
supervision, L.
whereas all citizens living in the European Union are concerned for their safety and for that of their
families, CRIMINAL
LAW PROVISIONS
1.
Recalls that the European Convention for the Protection of Human
Rights and Fundamental Freedoms constitutes the
foundation stone of European integration in the field of criminal law
from which it has been possible to derive fundamental principles to serve
henceforth as the common legal and cultural denominator of the Member States
of the European Union; 2.
Welcomes the Corpus Juris, which sets out criminal law provisions relating to the protection of the
European Union's financial interests, since it might serve as an example for
future developments, and looks forward with interest to the Commission's
report on the possible implications of the Corpus Juris for national legal
principles; 3.
Is not seeking the creation of a European Penal Code but calls for the gradual establishment of a European
criminal law system in which account is taken of Member States' legal traditions
and, on the basis of the latter, methods are found of combating and
preventing international organized crime and, in particular: (a)
gives priority to gradual harmonization, as provided for in the second paragraph of Article 29 of the Treaty on
European Union and in the Action Plan to establish an area of freedom,
security and justice, of the approach to the following offences connected with
organized crime: -- offences against children (especially
sexual exploitation) -- trafficking in persons -- drug trafficking -- terrorism -- corruption and fraud -- money-laundering crimes in respect of which the Union
already possesses a common body of case-law, (b)
takes the view that additional efforts are required to define the Union's specific priorities in the
following crime sectors: -- arms trafficking (Article 29 of the
TEU) -- crimes against the environment (Action
Plan) and trafficking in nuclear substances -- high-tech crimes (Action Plan),
especially those committed via the Internet -- doping in sport (conclusions of the
Vienna European Council) in respect of which it is crucial to ensure
continuity with the policies already being pursued at Union level, while at
the same time extending the study of cross-border implications and seeking a
coordinated approach at international level; 4.
Calls on the Council and Commission, when elaborating this system, to put in place a genuine legislative
program capable of exploiting to the full the resources provided by the Treaty
of Amsterdam, in particular the extended right to propose legislation
attributed to the Commission and the framework decisions, once the new
provisions enter into force; PROCEDURAL ARRANGEMENTS AND INSTRUMENTS 5.
Takes the view that, with respect to the medium- and long-term
prospects for criminal procedures in the European
Union, an independent European Public Prosecutor might be appointed who
would operate in parallel with national public prosecutors and,
initially, might serve to centralize judicial information on transnational
investigations under way relating to offences covered by the European criminal
law system so as to avoid duplication of effort and enable the competent
investigating and legal authorities to participate and to make available
their respective intelligence and expertise, in particular in order to ensure
better coordination of the actual investigations; 6.
Assumes that, at a later stage, the European Public Prosecutor might
be given responsibility, via delegated
prosecutors, for the opening of investigations and the bringing before
the competent Member State courts of public criminal law proceedings involving
offences covered by the European criminal law system; 7. Points out that a European Public
Prosecutor might be able to provide judicial control of the activities of
Europol, given that the Treaty of Amsterdam provides for Europol to
undertake operational activities although, to date, there has been no provision for
any judicial and democratic review; 8.
Points out that a European Public Prosecutor could also provide appropriate judicial control of
UCLAF/OLAF and that, at all events, it is essential to ensure that the latter body
is sufficiently independent of the Commission; INSTITUTIONAL ISSUES 9.
Would like to know the opinion of the national parliaments about the adoption of acts connected with the
establishment of an area of freedom, security and justice and undertakes to do
its utmost to ensure that the citizens of Europe are kept fully
informed about what is going on; 10.
Demands, with a view to the drawing up of a legislative program
relating to the European criminal law system, that the Council enable
Parliament to play its full role which, although still advisory in nature,
has been strengthened by the Treaty of Amsterdam and is indefeasible, in the
light of the principle of legality, where Union activities begin to involve
the sphere of criminal law; 11.
Calls on the Commission to ensure that Parliament is fully involved in the phase of assessment of the
feasibility of the measures connected with the establishment of an area of freedom,
security and justice, and, in particular, the establishment of the
Corpus Juris, and proposes that the national parliaments be invited to work
together in order to consider the various political and constitutional
aspects arising from the reform concepts connected with the European Public
Prosecutor; FINAL CONSIDERATIONS 12.
Calls on the applicant countries to give their full support to the
reforms and to the process of bringing their legal systems and their
administrations into line with those of the Community; 13.
Calls on the Council to conclude cooperation agreements, within the meaning of Article 38 of the TEU, with
target third countries particularly concerned by illicit drug trafficking,
organized crime especially financial (tax havens) - and terrorism with a
view to promoting approximation of the constituent elements of criminal acts
and penalties in the fields concerned; 14.
Instructs its President to forward this resolution to the Council and Commission, to the governments and
parliaments of the Member States and to the governments and parliaments of the
applicant countries. The following Contribution from the
Commission, dated September 2000, seeks to justify the creation of a
unified Community law-enforcement area and the insertion into member
states' national legal systems of the functions of a European Public
Prosecutor responsible for detecting uniformly applicable criminal offences
and conducting prosecutions within national criminal courts according to the
procedural rules proposed by Corpus Juris. ADDITIONAL COMMISSION CONTRIBUTION TO THE INTERGOVERNMENTAL CONFERENCE ONINSTITUTIONAL REFORMS The criminal protection of the
Community's financial interests: a European Prosecutor Introduction In its opinion of 26 January 2000
"Adapting the institutions to make a success of enlargement", the
Commission suggests in connection with the protection of the Community's financial
interests that a legal basis be created in the Treaty for setting up a
system of rules relating to offences and the penalties that they incur, to the
requisite procedural provisions for the prosecution of these offences and
to the powers and tasks of a European Public Prosecutor responsible
for detecting fraud offences throughout European territory and for
prosecutions in the national courts. In the framework of its new anti-fraud
strategy, the Commission has confirmed its wish to strengthen the
protection of the Community's financial interests in this respect. In 1998 fraud and other irregularities
affecting to the Community's financial interests accounted for a total
estimated by the Member States and by the Commission at over a billion euros.
The involvement of organized crime in fraud to the detriment of the
Community's financial interests and the transnational character of such crime
presuppose cooperation with fifteen legal orders applying different rules of
both substance and procedure. The current methods of cooperation often prove
insufficient to overcome the difficulties faced by the judicial and police
authorities in their fight against such fraud. These difficulties will increase as the
number of Member States and the number of operators and administrations
involved in the management of Community funds rise. The powers which this Communication
proposes should be vested in a European Public Prosecutor would be limited
strictly to the protection of the Community's financial interest. Only the essential characteristics of the
office would be laid down in the Treaty (appointment, removal, duties, and
independence), leaving the rules and mechanisms governing its operation to
be regulated by secondary legislation. The complexities to be overcome in view
of the Community's specific responsibilities for the protection of
the Community's financial interests The shortcomings of the current mechanism
are due mainly to the fragmentation of the European criminal
law-enforcement area, which results from the fact that the national police
and judicial authorities are empowered to act only on their own
territory. The traditional methods of mutual judicial assistance and
cooperation between police forces remain cumbersome and are often unsuited to an
effective fight against transnational fraud. And experience has
shown the difficulties of making a success of administrative inquiries in
terms of prosecutions. But the Community's financial interests
ought to be protected especially rigorously and in equivalent fashion in
all the Member States, since the money involved represents pooled
resources. Responsibility for ensuring that the Community's financial interests are
protected rests on the Member States and the Community both. The European
Union must be able to guarantee the Member States and their citizens that
offences of fraud and corruption are genuinely prosecuted in the courts. The fragmentation of the European law-enforcement area Article 280 EC states that measures
adopted by the co-decision procedure to counter fraud and any other illegal
activities affecting the financial interests of the Community "shall not
concern the application of national criminal law or the national
administration of justice". The EC Treaty as its stands, therefore,
confers no powers to set up a European criminal law-enforcement area
comprising a common judicial body such as a prosecutor. The signing of the Convention on the
protection of the financial interests of the European Communities of 26 July
1995 and of its additional protocols constitutes a first step towards the
criminal protection of the Community's financial interests. These documents,
which are the fruit of cooperation between governments under the "third
pillar", are an important asset since they define fraud, misapplication of
funds and corruption as offences incurring criminal penalties in all
Member States. But the Convention and its protocols have
not yet entered into force as they have not been ratified by all the
contracting parties. When they are in force, there will still be a degree of
uncertainty as to the way in which they will be transposed into national
criminal law by all the parties. What is more, these provisions alone will not
suffice to eliminate the fragmentation of the European
law-enforcement area as prosecutions will still be brought at national level. Thus, given that there are fifteen different
systems of criminal law, the Community has only very limited means to
ensure effective and equivalent protection of the Community's financial
interests in the Member States, as required by the Treaty. In the current
situation, however effective the administrative coordination that the
European Anti-fraud Office can generate, criminal proceedings remain
uncertain. The Community does not have the instruments to supplement
preventive action and administrative inquiries with a prosecution function. The traditional methods of judicial
cooperation between the Member States are cumbersome and inappropriate National mechanisms are the basis for
criminal protection against transnational crime and remain essential.
There are also international forms of cooperation in criminal matters, now
boosted by the strengthened provisions for judicial cooperation under
the third pillar. But the development of organized crime to
the detriment of the Community's financial interests makes the traditional
instruments of mutual judicial assistance inadequate, and the progress
achieved in judicial cooperation is also insufficient. There is no
possibility of providing an interface between the Community level and the national
judicial authorities in the Treaty as it stands. Difficulties in making administrative
inquiries culminate in successful prosecutions Numerous cases based on the Community
experience in recent years thus testify to persistent obstacles in a
field where precisely the specific responsibilities of the Community and the
Member States create the need for a clear perception of the interests to be
protected and for greater efficiency in proceedings in terms of the
Community territory. The proposed mechanism In the absence of a specific Community
institutional structure the existing mechanisms, however legitimate and
irreplaceable they may be, amount to obstacles to prosecution by the police
and the courts and advantages for the criminal. Given the design of the Treaty,
therefore, the Commission recommends that in order to respond to
the current situation the primary legislation should be amplified to allow
the creation of an office of European Public Prosecutor, its
organization and operation being governed by secondary legislation. This amendment
would be confined to protection of the Community's financial interests. Mature and detailed preparatory study The Commission proposal to the
Intergovernmental Conference is based on detailed preparatory work. For nearly ten
years now, at the request of the European Parliament and the Commission, a
group of experts in criminal law from all the Member States has been
working on the criminal protection of the Community's financial interests.
Their work produced the proposal for a set of rules for the criminal protection
of the Community's financial interests, the well-known Corpus Juris. It
recommends the creation of a unified Community law-enforcement area as
regards the preparatory stages of court proceedings precisely by the
harmonious insertion in the national systems of a European Public Prosecutor,
excluding any communitarization of the administration of criminal justice. The authors of the Corpus Juris specified
the possible architecture of an independent European Public Prosecutor,
responsible in matters of the protection of the Community's financial
interests for directing investigations and prosecuting cases in the relevant
national courts and for coordination with national procedures. The organization would be highly
decentralized. The European Public Prosecutor would be supported by Deputy
European Prosecutors in the Member States so as to secure the link between
the Community mechanism and the national legal systems. The object of the reform In this spirit, the Commission recommends
the institution of an independent European Public Prosecutor to protect the
Communities' financial interests. This would supplement the reform of the
Community courts as proposed by the Commission in its additional contribution
to the Intergovernmental Conference of 1 March 2000 by adding a
judicial body with the function of bringing prosecutions in the courts of
the Member States and of exercising ongoing control of criminal
investigations across the Community territory in order to enforce the law and protect the
Community's finances. The point is not to communitarize the administration
of criminal justice, which would remain within national powers. The methods of the reform In the Commission's view, the Treaty will
need amending only as regards the European Public Prosecutor's appointment
and removal from office and the definition of his main tasks and the
principal characteristics of his function, to be set out in a new Article
280a. The Treaty would provide for secondary legislation to lay down the regulations
applicable to him and govern his operation. The appointment of the European Public Prosecutor(paragraphs 1 and 2 of the new Article 280a) The Commission proposes that the European
Public Prosecutor be appointed by the Council, acting by a qualified majority
on a proposal from the Commission with the assent of the
European Parliament. The proposal, which should be made by the Commission in view
of its specific responsibility for protecting the Community's financial
interests, would be submitted, for example, in the form of a list of
candidates from which the Council could select the European Public Prosecutor.
The Commission further considers that conditions governing the removal from
office of the European Public Prosecutor should be laid down (paragraph
2 of new Article 280a). Regarding the term of the office, the Commission
proposes a non-renewable term of six years (paragraph 1 of new Article 280a).
An essential characteristic of the European Public Prosecutor must in
particular be stressed: his independence as a judicial officer ( paragraph 2 of
new Article 280a). Apart from these essential elements, the revised Treaty
would leave the regulations governing the Prosecutor in respect of such things
as structure, location of offices, etc. to be determined by Community
secondary legislation in accordance with the procedure laid down in Article 251 of
the Treaty, which calls for a qualified majority in the Council and
co-decision with Parliament. Conditions for the exercise of the European Public Prosecutor's functions (paragraph 3 of the new Article 280a) With regard to the conditions for the
exercise of the European Public Prosecutor's functions, a specific
mechanism confined to activities detrimental to the Community's financial
interests is necessary to ensure smooth operation in terms of both
substantive criminal law and criminal procedure. These rules should be adopted
by the Council by the co-decision procedure. To clarify the Prosecutor's powers,
offences relating to activities prejudicial to the Community's financial
interests (fraud, corruption, money laundering etc.) and the relevant
penalties should be defined more explicitly at Community level. It is
difficult to reconcile the rigor of the criminal law with the existence of
differences throughout the Community if the point is to ensure the effective
and equivalent protection of the Community's financial interests. The
definitions of these common offences should therefore be uniformly applicable
in the national legal systems by the national criminal courts, as the
ordinary courts of Community law, and this implies the adoption of specific
rules. The provisions drawn up under the Convention of 26 July 1995 referred
to above and its additional protocols already provide a solid basis that has
the agreement of the Member States. Moreover, the performance of the
Prosecutor's duties will have to be made subject to rules of procedure (on such
points as the mechanisms for referring cases to the Prosecutor, the
Prosecutor's powers of investigation, or the initiation and termination of
enquiries) and rules of judicial review (on such points as the review of acts
done by the Prosecutor, whether or not under a warrant granted by a national
judge). The Corpus Juris describes some possible options for rules of
procedure and coordination with the national authorities. Rules of this kind
will in any event have to be spelt out in proposals for secondary
legislation, which will have to respect the national legal systems and traditions.
Provision must therefore be made for the enactment of the following, by the procedure laid down in Article 251 of the Treaty: rules concerning offences (subparagraph 3(a)
of the new Article 280a) rules of procedure applicable to the activities of the
Prosecutor and rules governing the
admissibility of evidence (subparagraph 3(b) of the new Article 280a) rules for the judicial review of the Prosecutor's
actions, such rules being essential for the performance of his duties
(subparagraph 3(c) of the new Article 280a). These provisions of secondary legislation
should also determine how this Community mechanism meshes with the
national legal systems. Conclusion In conclusion, the Commission proposes
that the Conference supplement the current provisions concerning the
protection of the Community's financial interests with a legal basis allowing: - the appointment of an independent European Public Prosecutor exercising the prosecution function in the courts of the Member States in the field of the protection of the Community's financial
interests and within the framework of specific rules adopted for this
purpose; and - the subsequent adoption through
secondary legislation of: the regulations applicable to his office, - rules of substantive law concerning the
protection of financial interests by the European Public Prosecutor (offences
and penalties), - rules governing criminal procedure and
the admissibility of evidence, - rules
concerning judicial review of actions taken by the Public Prosecutor in the
performance of his duties. +++ Ø
Part 5. Increased state
surveillance -------- 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 |