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European Prosecutor, a Trojan horse for fundamental rights protection?

16 March 2018, Nicola Canestrini

Traditionally, the protection of Union's financial interests was within the exclusive competence of European Union Member States and the EU anti fraud office OLAF as well , Eurojust and Europol did not not have the mandate to conduct criminal investigations.

In 2013, the European Commission submitted a proposal establishing a European Public Prosecutor’s Office (EPPO). The legal basis and the rules for setting up the EPPO are laid down in Article 86 of the Treaty on the Functioning of the EU (TFEU). Under this provision, the proposed regulation is to be adopted in accordance with a special legislative procedure: the Council is to decide unanimously after obtaining the consent of the European Parliament. If unanimity is not reached in the Council, the treaties provide that a group of at least nine Member States may undertake enhanced cooperation.

Given the absence of unanimity in support of the proposal establishing a European Public Prosecutor’s Office, in October 2017 the regulation establishing the European Public Prosecutor's Office (EPPO) was adopted by those 20 member states which are part of the EPPO enhanced cooperation.

The EPPO, first envisioned in the 2009 Lisbon Treaty, will be in charge of investigating, prosecuting and bringing to justice the perpetrators of offences against the Union's financial interests. It will bring together European and national law-enforcement efforts to counter EU fraud; more specifically, will coordinate national law enforcement efforts with the European police and law agencies Europol and Eurojust, as well as the EU anti-fraud office OLAF.

"The creation of the European Public Prosecutor's Office is an important step in European justice cooperation, which will help to protect our taxpayers money. "
Urmas Reinsalu, Estonian Minister of Justice

The prosecutor will have the power to coordinate police investigations, freeze and seize assets, and arrest suspects across borders.

The EPPO will work as a collegial structure composed of two levels. The central level will consist of a European chief prosecutor, who will have overall responsibility for the office. The Luxembourg office will have a chief prosecutor and prosecutors from all participating countries, who will be heading the day-to-day criminal investigations carried out by delegated prosecutors in all participating member states.

Although the new office is thought to be "a powerful tool to protect citizens even beyond its current competence for crimes against the EU budget", it is an easy prediction that the powers of the EPPO will be extended in order to include serious crime with a cross-border dimension, as allowed under under Article 86/4 TFEU.

The European Council may adopt a decision in order to extend the powers of the European Public Prosecutor’s Office to include serious crime having a cross-border dimension and investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices in, serious crimes affecting more than one Member State.
art. 86/4 TFEU

Not surprinsingly, French President Emmanuel Macron and European Commission President Jean-Claude Juncker both endorsed a possible expansion of the prosecutor’s role to areas like terrorism in a speech of September, 2017 - even before the regulation was adopted.

Barbara Matera, the centre-right MEP who guided the legislation through the Parliament, said that "hopefully, the scope of the EPPO’s powers could in the near future also include trans-border crimes like terrorism and trafficking of human beings”.

European Parliament President Antonio Tajani also described today’s vote as the first step toward a more powerful EU prosecutor. “We are open to discuss possibilities of similar measures to combat terrorism and organised crime. Citizens expect Europe to be there where it can make a difference. Terrorists have no borders,” he added. “To face terrorism we must therefore have no limits in the cooperation between national authorities.

In fact, Ursula von der Leyen, President-elect of the European Commission, instructed Didier Reynders, Commissioner-designate for Justice, with a Mission letter of last September, 10th 2019.

Regarding the European Public Prosecutor’s Office (EPPO), and being said that the European Parliament’s leading MEPs endorsed the appointment of Romanian Laura Codruţa Kövesi’s as the first head of the new European Public Prosecutor’s Office, on Wednesday, October 16, 2019, President-elect stated as follows

  • "you will support the setting-up of the European PublicProsecutor’s Office and work on extending its powers to investigate and prosecute cross-border terrorism".

The creation of the brand new European Prosecutor's office reminds me what happened with the Federal Bureau of Investigations (FBI).

From its official inception in 1908, the FBI’s mission, jurisdiction, and resources have grown substantially inparallel with the real - or perceived - threats to American society, culture, political institutions, and overall security.

Originally, the Department of Justice's Office of the Chief Examiner (which was the original name of FBI) consisted mostly of accountants and was created to review financial transactions of the federal courts.

In 1908 the Department of Justice hired 10 former Secret Service employees to join an expanded Office of the Chief Examiner. The date when these agents reported to duty– July 26, 1908 – is celebrated as the genesis of the FBI. the initial force By March 1909, the force included 34 agents.

The federal government used the bureau as a tool to investigate criminals who evaded prosecution by passing over state lines, and within a few years the number of agents grew consistently. Nowadays, approx. 35.000 people work for FBI and the offices and divisions at FBI Headquarters provide direction and support to 56 field offices in big cities, more than 350 smaller offices known as resident agencies, several specialized field installations, and more than 60 liaison offices in other countries known as legal attachés; in 2018, the Bureau requested a total of $8.77 billion in direct budget authority to carry out the FBI’s national security, criminal law enforcement, and criminal justice services missions.

The problem is that - among great success in fighting criminal activities - especially after WWII FBI focused on the threat of radical, especially communist, subversion. The FBI compiled files on millions of Americans suspected of dissident activity: in 1956, Hoover initiated COINTELPRO, a secret counterintelligence program that initially targeted the U.S. Communist Party but later was expanded to infiltrate and disrupt any radical organization in America.

During the 1960s, the immense resources of COINTELPRO were used even against African American civil rights organizations and liberal anti-war organizations. One figure especially targeted was civil rights leader Martin Luther King, Jr., who endured systematic harassment from the FBI.

The Watergate affair subsequently revealed that the FBI had illegally protected President Richard Nixon from investigation, and the agency was thoroughly investigated by Congress. Revelations of the FBI’s abuses of power and unconstitutional surveillance motivated Congress and the media to become more vigilant in the future monitoring of the FBI.

The American Civil Liberties Union stated that the FBI "has become a domestic intelligence agency with unprecedented power to peer into the lives of ordinary Americans and secretly amass data about people not suspected of any wrongdoing. That power has inevitably led to persistent and unconstitutional abuses of authority", such as racial and ethnic mapping, targeting journalists, suppressing internal dissent, ..

In Chip GIbbons' 2019 report  "Still spying on Dissent. The Enduring Problem of FBI First Amendment Abuse" the authors state that "Throughout its history, the Federal Bureau of Investigation (FBI) has used its expansive powers to investigate, monitor, and surveil First Amendment-protected activity. As early as 1924, public concern about the FBI’s violation of First Amendment rights and other civil liberties spurred official attempts to check the FBI’s power."

That said, let's hope that George Bernard Shaw was wrong when he stated that "we learn from history that we learn nothing from history."

 (updated October, 2019)

read more:

The Ten Most Disturbing Things You Should Know About the FBI Since 9/11, https://www.aclu.org/issues/national-security/privacy-and-surveillance/feature-ten-most-disturbing-things-you-should-know

The FBI: Past, Present, and Future, CRS rport for Cngress, October 2003.

Report  "Still spying on Dissent. The Enduring Problem of FBI First Amendment Abuse