Slovenian National Assembly

Proposal for a COUNCIL REGULATION on the establishment of the European Public Prosecutor's Office

Scrutiny details

Subsidiarity deadline: 28/10/2013
 
Scrutiny Information

Scrutiny date: 25/10/2013

  A reasoned opinion has been sent

  Important information to exchange

No Veto

Information on parliamentary scrutiny

Passed on to the Committee on Justice. The document has been discussed at its 15th  meeting of 16 October 2013.

And at it's 78th meeting of 18 October 2013 the Committee on EU Affairs of the National Assembly of the Republic of Slovenia adopted the following Position:

The Republic of Slovenia believes that well-coordinated prosecution of crime, particularly organised crime, is essential. Thus, in the light of the goals pursued, Slovenia supports in principle the establishment of the European Public Prosecutor's Office. However, the Republic of Slovenia is also of the opinion that the collegial structure of the European Public Prosecutor's Office, ensuring the independence of public prosecutors who will prosecute actual crime, the investigative measures in line with the Slovenian Constitution and law, and an adequate arrangement for admissibility of foreign evidence are of key importance for maintaining the constitutionally and legally prescribed balance between the protection of human rights and fundamental freedoms and the effectiveness of judiciary. Moreover, the Republic of Slovenia believes that in terms of the principle of subsidiarity (which is not only a legal, but also a political and legal principal) it is possible to prove that the premise – by which the European Commission proposes the system of functioning of the European Public Prosecutor's Office to maximise the efficiency against misuse of EU budget –  is incorrect as far as Slovenia is concerned, considering the significant activity of Slovenia's state prosecution and police.

The first question that arises in relation to the establishment of the European Public Prosecutor's Office is whether the Commission's findings on inefficient actions taken at the national level in prosecuting offences against the Union's financial interests also hold true for Slovenia. This assumption in fact provides the basis for the organisational structure of the European Public Prosecutor's Office as envisaged by the Commission or the Proposal for a Regulation. The logic is however simple and in its essence and in view of the given assumption – provided that it is correct – true: if the national level is not interested in prosecuting a specific type of crime, then the prosecution of such crime is not a priority, therefore priorities need to be set at an adequate, transnational level and should be consistently exercised through a strict hierarchically determined structure. In the particular case, this would be a single European Public Prosecutor who would directly guide the Delegated Prosecutors and other prosecution staff. In the Slovenian case, the prosecution of economic crime and corruption offences – among which the offences contained in the proposed regulation – is a priority, which in the recent period it has indeed been successfully implemented in practice, and in addition to all that has been mentioned above, Slovenia already has an established specific system of state prosecution in which the prosecutors are fully independent in managing their affairs and are not bound by any instructions from branches of authority or individuals. Considering the Slovenian legal arrangement and practice, there is clearly no reason for concluding that the prosecution of offences affecting the Union's financial interests is ineffective. Therefore, in view of the principle of subsidiarity, it was not proved – at least in principle – that the proposal sufficiently observed this principle.

In Slovenia, the system according to which the delegated prosecutor, also acting as prosecutor under national law, would be guided by his head in particular matters, would also be clearly unconstitutional with regard to the above indicated Ruling of the Constitutional Court of the Republic of Slovenia from 2013.

However, the Republic of Slovenia believes that well-coordinated prosecution of crime, particularly organised crime, is essential, and therefore, in the light of the goals pursued, it supports in principle the establishment of the European Public Prosecutor's Office. As a general rule, organised crime goes beyond borders of one country and criminal offenders benefit from poor cooperation between the countries in judicial matters which is normally based on the protection of national sovereignty. Slovenia considers that the criminal offences which will fall under the competence of the European Public Prosecutor's Office – with the exception of money laundering and corruption – are not among the typical, most frequent and most problematic criminal offences committed by the organised crime, yet nevertheless Slovenia believes that, pursuant to the legal basis of the Lisbon Treaty, this particular set of criminal offences is only the first step and that the next step will be the extension of the competence of the European Public Prosecutor's Office to the area of organised crime.

In order to avoid the unconstitutional state that might be caused by hierarchically organised prosecution at the European level (i.e. systemic "monocratism"), the Republic of Slovenia at this stage supports the collegial structure of the European Public Prosecutor's Office in which, instead of one European Public Prosecutor, there would be a representative from each participating Member State, and which rather than in hierarchical structure, it would pursue its activities in adequately composed senates and would unanimously vote on the most important decisions or would possibly be bound by general instructions issued by the head of the European Public Prosecutor's Office (maybe also through prior consultation in the college). This would mean that a "Slovenian" European Public Prosecutor, having two roles (double-hatted), would act in the European Public Prosecutor's Office, and when acting in the role of the European Public Prosecutor the strict legal requirements of the Republic of Slovenia concerning the independence of a public prosecutor would thus be implemented in a different manner (maybe also by adopting general guidelines as regards the prosecution at the level of European Public Prosecutor's Office, whereby the European Public Prosecutor would consult also other countries' prosecuting organizations on this matter). Such approach of principle would be in line with the spirit of the first paragraph of Article 3a of the Constitution, in connection with Article 8 of the Constitution (Article 3a(1) of the Constitution stipulates that: "Pursuant to a treaty ratified by the National Assembly by a two-thirds majority vote of all deputies, Slovenia may transfer the exercise of part of its sovereign rights to international organisations which are based on respect for human rights and fundamental freedoms, democracy and the principles of the rule of law and may enter into a defensive alliance with states which are based on respect for these values.", while Article 8 of the Constitution provides that: "Laws and regulations must comply with generally accepted principles of international law and with treaties that are binding on Slovenia. Ratified and published treaties are applied directly."). This signifies that the European Public Prosecutor will have the right to act in the territory of Slovenia as the prosecutor having exclusive subject matter jurisdiction for criminal offences to the detriment of the Union's financial interests. When the actual delegated prosecutor will appear before the Slovenian court, he will act on behalf and for the account of the European Public Prosecutor's Office.

However, the issue of the relation of the delegated Slovenian European Public Prosecutor towards the State Prosecutor's Office of the Republic of Slovenia will have to be resolved (maybe by a special general clause) - probably by referring to the organisational law of the Member States.  

Slovenia also strives for a more detailed determination of criminal offences which will fall under the competence of the European Public Prosecutor's Office, particularly from the point of view of the damage caused by an individual criminal offence. Slovenia considers that the European Public Prosecutor's Office to be dealing with less significant criminal offences (e.g. embezzlements of a few hundred euro) is not reasonable, nor in compliance with the principles of subsidiarity and proportionality, which in terms of the principle of proportionality it is a known problem already as regards the European Arrest Warrant. Therefore, Slovenia strives that an adequate financial or other threshold – which would have a decisive role in determining the jurisdiction – is determined.

The regulation must, except in justified exceptional cases, also maintain the level of transparency currently in force as defined by the Regulation 1049/2001; therefore, Article 65 of the Proposal for a Regulation should be amended accordingly.

The Proposal for a Regulation envisages a comprehensive set of investigative measures which under the national law need to be available to the European Public Prosecutor's Office. Slovenia believes that this index has gone way too far since it contains hidden investigative measures which are not allowed under our national law for the majority of the criminal offences for which the European Public Prosecutor's Office will have jurisdiction (also with regard to the ruling of the Constitutional Court of the Republic of Slovenia). This is an additional argument for a more detailed determination of criminal offences which should fall within the competence of the European Public Prosecutor's Office, since absurd situations may otherwise arise in which less significant offences prosecuted by the European Public Prosecutor's Office will be subject to more invasive measures than similarly serious offences that will be prosecuted by the national prosecutor. The safeguards offered by the Proposal for Regulation for the introduction of hidden investigative measures are inadequate compared to the Slovenian law.  Therefore, Slovenia believes that hidden investigative measures need to be implemented in line with the national law and advocates the deletion or at least a restriction of use of points e), f), i) and j) of Article 26(1) of the Regulation.

The text of the Regulation governing the admissibility of evidence (Article 30) is somewhat unclear, since it provides that where the court considers that its admission does not adversely affect the fairness of the procedure or the rights of defence, it must admit the evidence in the trial without any validation or similar legal process even if the national law of the Member State where the court is located provides for different rules on the collection or presentation of such evidence (arising from strict requirements of the national constitutions). Once the court admits the evidence, it can freely assess it pursuant to paragraph 2 of the same Article.

As seen from the overview of the Slovenian arrangement and case law, the Slovenian courts first assess the admissibility of foreign evidence pursuant to the rules of the country in which they were taken. Such test is vital, otherwise it might happen that unconstitutionally and unlawfully obtained evidence would be admissible. Slovenia therefore strives for a clear diction which will allow an assessment of evidence also in the light of their lawfulness under the foreign law and the national law.

Likewise, it is unclear in what manner will the Slovenian European Public Prosecutor steer the police, i.e. steering in the pre-trial investigation. As a general rule, the police officers are steered by first instance public prosecutors who may personally meet, are familiar with the police in the relevant area considering the general local jurisdiction, and have the possibility to specify their requirements in terms of what should the actions of the police be like. In such case it is questionable whether the remoteness of the Slovenian European Public Prosecutor – who, according to the Proposal, would steer the staff of the Slovenian Police at a distance – is indeed a contribution to maximising the efficiency of detecting and prosecuting the perpetrators of criminal offences as determined in the Proposal for a Regulation.



​The Committee on EU Affairs decided to perform the subsidiarity check. The proposal is referred to the Committee on Justice. The Committee will examine whether the draft is in compliance with the principle of subsidiarity.

The Committee on EU Affairs on it's 79th meeting of 25 October 2013 deliberated  that the Proposal for the Council Regulation on the Establishment of the European Public Prosecutor's Office violates the principle of subsidiarity.


Lisbon Treaty procedures
 
  Reasoned opinion

25/10/2013 | Reasoned opinion
The document was adopted on 25 October 2013.

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