The future European Criminal Code that
will overthrow Habeas Corpus and Trial by Jury in UK
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 España held on 17th and 18th April 1997, in San Sebastián,
Spain.
The objectives of this Seminar were described
in the official programme 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 organisers 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."
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 on the basis
of 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 organisation, 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 offical, 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 favour 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 ECUs.
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 commited when a Community
official formally authorised 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 ECUs.
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 authorises 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 -- A conspiracy which harms the Community
budget constitutes a criminal offence.
2 -- A conspiracy is when two or more persons
work together, setting up the necessary organisation, 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 ECUs, which may
be raised to five times the amount involved in the offence;
b) for organisations, legal supervision for a maximum of five
years and/or a fine of up to one million ECUs, 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 -- Mensrea
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 defence if it is partial, precise
and specific, if it corresponds to a structure necessary for the
running of the business and if the delegatees are really in a
positon to be able to fulfil 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 organisation of work within the business.
Article 14 -- Criminal liability
of organisations
1 -- The offences defined in Articles 1
to 8 above may be committed by corporations, and also by other
organisations which are recognised by law as competent to hold
property in their own name, provided the offence is committed
for the benefit of the organisaton by some organ or representative
of the organisation, 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 organisation 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 ECUs;
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.
Part 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 _ Seisin 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 Commision.
National authorities must seise 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 seised 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 beeen 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 acused, having admitted guilt, has
made amends for the damage caused and, as the case may be, returned
funds received illegally;
c) or grant an authorisation 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 (à charge et à 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 authorisation 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 organised 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, seises 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 ECUs
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,
authorise 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 recognised
by the European Convention on Human Rights which is taken at this
stage and which affects a witness or the accused must first be
authorised 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 authorisation
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
seises 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,
specialising 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 subsidiarity 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, on the basis of civil interests
only.
3 -- In the case of appeal by the convicted
person alone, the court seised 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 seise 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 defence 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 defence 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 defence 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 defence 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, unlesss 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 judgement 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 audiovisually if the national law of the State
concerned allows it and under the conditions which it imposes.
Article 35 _ Subsidiarity 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.
