Green light for the Draft Organic Law to implement the European Regulation creating a European Public Prosecutor’s Office

The Plenary of the Congress has approved, with 198 votes in favour, the Draft Organic Law implementing Council Regulation (EU) 2017/1939 of 12 October 2017 establishing enhanced cooperation to create a European Public Prosecutor’s Office. The initiative now goes to the Senate, where it continues its parliamentary procedure.

The text adopted on Thursday coincides with that of the opinion issued by the Justice Committee on 3 June, as all the amendments that had been kept alive were rejected.

Adequacy of the legal system

This initiative of the executive aims to adapt the Spanish legal system to the Community Regulation for the creation of a European Public Prosecutor’s Office, “a body common to the member states but independent of them, designed to combat crimes that harm the financial interests of the Union and, therefore, the interests of European citizens as a whole”.

The institution, as defined in the Regulation, is made up of a central level, which includes the European Public Prosecutor, and a decentralised level made up of the Deputy European Public Prosecutors. And “despite being regulated by Regulation, a rule that is directly effective in national systems, the Office of the European Public Prosecutor requires adaptation and adaptation to national procedural systems”, the explanatory memorandum points out.

Deputy European Public Prosecutors and judges of guarantees

The law is made up of a Preliminary Title and six other titles. The Preliminary Title sets out the purpose of the Organic Law and its scope of application, establishing a general supplementary clause whereby the provisions of the Criminal Procedure Act will be applicable to all matters not provided for in the law.

Title I “sets out the functions and principles of action of the European Public Prosecutor’s Office in the national territory”. To this end, the Deputy European Public Prosecutors will be competent to “investigate and prosecute” the perpetrators and other participants in offences “detrimental to the financial interests” of the EU, offences against the Union’s finances that do not relate to direct national taxes, fraud in European subsidies and aid, money laundering involving the proceeds of such offences, and participation in a criminal organisation whose activity is the commission of any of these offences.

Furthermore, the Audiencia Nacional shall be the competent court to hear and rule on the proceedings provided for in the organic law, and in cases of aforamiento, the Supreme Court or the High Court of Justice, as appropriate, shall be the competent court. In each of these jurisdictional bodies, a judge of guarantees shall be constituted, who shall be responsible for authorising proceedings restricting fundamental rights, in accordance with the law, and for agreeing on precautionary measures or the opening of the oral trial.

It also provides that in the event of a disagreement between the European and national Public Prosecutor’s Offices as to whether conduct constituting a criminal offence falls within the scope of the Regulation, the State Prosecutor General shall decide.

Title II establishes the Statute of the European Public Prosecutor’s Office and of the Deputy Public Prosecutors. To this end, it regulates the selection process for candidates, the European Public Prosecutor’s Office in Spain and the means of support for the Deputy Public Prosecutors.

The investigation procedure is the subject of Title III, which seeks to “clearly systematise” the specific features of the Regulation as regards its initiation. To this end, it regulates the initiation of the procedure; the intervention of the person under investigation, defining his or her rights; the intervention of the private prosecution; the investigative measures of the Deputy European Public Prosecutor; and the precautionary measures.

Title IV, under the heading “Judicial control of the investigation”, regulates the “specificities of those investigative measures and precautionary measures which the Regulation affects in order to guarantee the effectiveness of these procedures”. These specificities include the declaration of secrecy, the authorisation of investigative measures, the adoption and extension of precautionary measures, the challenging of decrees by the Deputy Public Prosecutor, appeals against orders of the judge of guarantees and the securing of sources of evidence.

The explanatory memorandum says that Title V “is key, as it is new in our procedural tradition”. It is devoted to the conclusion of the investigation procedure, either by referral to the national authority “for continuation of the ordinary procedure” or by conclusion of the investigation and passage to an intermediate phase.

Title VI of the draft organic law concludes by regulating this intermediate phase: the preparation of the oral trial, by establishing the elements of the prosecution and defence pleadings, the preliminary hearing, the dismissal and the opening of the oral trial. Likewise, the final provisions introduce amendments to Law 50/1981, on the Organic Statute of the Public Prosecutor’s Office, and to Organic Law 6/1985 on the Judiciary.

Rapporteur’s report and Commission opinion

During the procedure in the Ponencia, among other modifications, it was agreed to incorporate an amendment that modifies paragraph 3 of Article 19. According to this article, “those who appear as public prosecutors will automatically lose the status of party”. However, the modification determines that “in those cases in which those who have been brought as public prosecutors may exercise the private prosecution in accordance with the provisions of Article 36 of this law, they shall be understood to have been brought as such”.

Article 36, which deals with the participation of the private prosecution, was also amended. Paragraph 5 indicates that in the procedure foreseen “it will not be admissible to appear as a private prosecution”. The approved amendment establishes that “criminal action may also be brought by the associations and entities that the law recognises as having standing to defend the interests that have been affected by the commission of the crime under investigation”.

It also included, as a special rule in case of detention, the obligation of the judge of guarantees to decide on the situation of the detainee, within a maximum period of 72 hours, among other issues.

The compromise amendments approved during the committee procedure meant, among other matters, that if an arrest is made for an offence the investigation of which falls within the competence of the Deputy European Public Prosecutor, without the arrest being agreed by the latter, the rule set out in the previous paragraph would apply. It was also agreed that the entry into force of the organic law would take place the day after its publication in the BOE (Official State Gazette).