Public Prosecutors in Europe: Questioning Their Independence to Foster Trust and Achieve Effective Enforcement

The independence of prosecution services from undue political influence constitutes everywhere an indispensable corollary to the independence of judicial systems, the fair and efficient functioning of justice, and therefore the rule of law. Prosecution services subject to undue influence from the executive open the door to politically motivated decisions, weak enforcement of corruption offences and threatens the functioning of the cooperation among EU Member States in criminal matters. My contribution will focus on the EU perspective on the issue and will analyse the recent CJEU judgements on the EAW (OG&PI, and several judgments afterwards), which cast a doubt on the level of independence of European prosecutors from the national executives. I will also provide a brief overview of the particular features of the Italian prosecution service, which is characterised by a particularly high level of independence of public prosecutors.

In response to the CJEU interpretation of ‘judicial authority‘ in the European arrest warrant (EAW) context, the Dutch Surrender Act was swiftly amended: the competence to issue EAWs has now been moved from public prosecutors to investigative judges. This was considered necessary because under Dutch law prosecutors can be subject to instructions from the Minister of Justice. However, the amendment of the Surrender Act leaves unaffected that in everyday criminal cases prosecutors remain exposed to the risk of being subject to instructions from the Minister. The desirability of it is now being discussed country-wide, especially since politician Geert Wilders has claimed political interference in his criminal trial for discrimination and inciting hatred. This contribution discusses Dutch law on the matter as well as its rationale. It subsequently considers whether adjustment of the law would actually prevent the occurrence of political instructions concerning prosecutorial decisions.

The CJEU allows that Belgian prosecutors issue EAWs, even if the Justice Minister can order them to start or continue procedures. Current reform proposals suggest that the Napoleonic investigating judges should be abolished altogether and the responsibility for all criminal investigations shifted to the public prosecution service, as in most European systems. Remarkably, the resistance of another bastion of investigating judges, Spain, seems to be crumbling, too. The controversial prosecution of Catalan politicians and the appointment of a former government minister to chief prosecutor brought the debate on political influence on the prosecution to fever pitch, but the new Minister of Justice announced similar reform as the one envisaged in Belgium. How do both countries try to reconcile independence of prosecutors with accountability and democratically legitimacy of criminal policy choice? The hypothesis is that the implementation of the EPPO could catalyze and inspire the reform.

When establishing the EPPO, the EU legislator insisted on the independence of this new hybrid judicial actor. The underlying idea was that, in order to better protect the Union‘s financial interests through criminal law, the EPPO should be able to prosecute ‘without direct influence of national authorities‘. Considering national authorities are sometimes themselves involved in EU fraud, the EPPO‘s independence is a key element in ensuring better enforcement. Yet, the EPPO‘s implementation process showed that this independence might actually be a two-edged sword. For instance, if set apart both legally and physically from the existing national public prosecutor‘s office, the European Delegated Prosecutors risk to be regarded as outsiders and to become isolated from existing structures, hampering the smooth cooperation with national authorities. Therefore, how to interpret this independence in a way to meet the EPPO‘s core objectives? Could a functional approach be the answer?