Defending yourself against the powerful EPPO, what to expect? DRAFT

By Eloise, Marina and Amber

Imagine you are a national who is a suspect or accused in a criminal proceeding of the EPPO. Are you aware of your exact rights as a defendant?

Defence rights in EPPO proceedings: Who cares?

T he European Public Prosecutor’s Office (EPPO) is a powerful body. It can investigate and prosecute the offences that are affecting the EU’s financial interest s. The actual prosecution by the EPPO always takes place before a national court in one of the EU Member States. A consequence could be that you as an individual have to take on the battle against the EPPO in a criminal proceeding. Now, it can be noticed that specific defence rights are not laid down in the EPPO Regulation itself. How could you defend yourself properly in this case?

In this blog post, we will provide you with some answers. We will guide you through the problems that we potentially have to deal with in a criminal proceeding by the EPPO. Especially in the case that the proceedings are referred to as a cross-border case. Additionally, we will lay out the arguments that you as the defendant could make. To make sure that in the end, you still stand a chance of effectively arranging your defence.

The defendant (left) against the powerful EPPO (right)

Criminal proceedings with a cross-border dimension: What to expect, or maybe even fear?

The EPPO has the power to choose a different Member State for prosecution than your own. It might therefore not be foreseeable before which court your trial will be held. Do you have any possibility to request a change of jurisdiction? Or that you will at least be heard before such a jurisdictional change is made? Unfortunately not. You do not have a voice or choice when it comes to the forum selection.

Secondly, in the case of a so-called cross-border prosecution, the investigation and obtaining evidence by the EPPO has taken place in multiple Member States. The delegated prosecutors of the EPPO are allowed to exchange and submit relevant evidence to the case file. Therefore, you as the defendant could be confronted with multiple documents based on different national procedural rules. If you want to argue that a piece of foreign evidence is illegally obtained, you need to take into account that the court will evaluate this argument based on its national procedural law. You could be confronted with the issue that the ‘potentially illegal’ evidence is stipulated as legal under their applicable procedural standards.

Another complexity you should become aware of is that your right to access the case file is limited. There are no uniform standards for handling the information in the case file laid down in the EPPO Regulation. There are no rules regarding access to such case files, nor are there any safeguards to ensure that the content of the information in the case management system always adequately reflects the case file.

Lastly, the EPPO Regulation does refer to the Charter of Fundamental Rights of the European Union as well as the ABC-Directives, to guarantee procedural rights. Therefore, it would seem that you receive enough protection and defence rights against the acts of the EPPO. But do not cheer too quickly. As noted, the national law of the state where the trial is held determines the procedural standards applicable. If a Member State has not implemented specific defence rights from these Directives, you can rely solely on the national procedural safeguards applicable. The level of protection of defence rights will be determined by the procedural rules of the state where the proceedings take place.

How to set up a successful defence

Looking at the issue of forum selection, you should be granted the ability to have more insight into where the proceedings will take place. Especially since this could simplify the process of selecting a lawyer. On this basis, you could use the argument that there should be a right to request a change of jurisdiction. Or at least, you should be granted a chance to be heard before such a jurisdictional change is made. Consideration should be given to your personal circumstances. The issue of foreseeability and the possibility of forum shopping means that the defendant must be guaranteed that there will be no change in the court’s jurisdiction during ongoing proceedings, as it is difficult to predict the court where the trial will be held.

Access to the case file is another important defence element. You could argue that complete access to information is necessary in order to prepare an effective defence strategy. The EPPO Regulation’s limited provision of free exchange of evidence makes it almost impossible for you to become aware of all documents obtained under all various procedural rules. You could use the argument of disproportionality in light of all the knowledge necessary to actually be able to understand the case file. The extra costs for an effective defence due to this complexity can be deemed unbearable.

The same argument can be used to challenge the lack of specific defence rights in the EPPO Regulation itself. As a defendant, it does not seem right to be dependent on the procedural rules of the Member State in which the proceedings take place.

Goal achieved?

Since you as a defendant are facing the consequences of an EPPO proceeding, you should be protected in all of your rights to be able to set up an effective and fair defence. In light of the difficulties that the defendant could face in a cross-border procedure of the EPPO, the individual needs to be made aware of applicable rights and possibilities to arrange his defence as effectively and successfully as possible. The Charter and the ABC-Directives are well-known instruments for defence rights. However, it would be easier and more efficient to include defence rights provisions, forum selection and a regression clause in the already existing EPPO Regulation. Cross-border prosecution is complex and deserves a general, harmonised and clear defence rights framework.