A European public prosecutor would be a dangerous distraction

One of the EU's greatest achievements is the abolition of internal border controls, which allow its citizens to move freely from one member-state to another. However, there is a dark side to European integration: terrorists and criminals can take advantage of passport-free travel as easily as ordinary citizens.

Following the terrorist attacks in Madrid on March 11th EU governments are urgently considering what they can do to prevent future atrocities. They should use this moment to rethink the case for a European Public Prosecutor¹s office (EPP). European governments are currently negotiating a new EU constitution, and the EPP is one of the new institutions proposed in that document. Does the Union need a pan-European prosecutor's office to investigate, prosecute and even try defendants for serious cross-border crimes? The answer is yes, but not in the form proposed in the draft constitution.

In 2002, EU governments set up Eurojust, a body that is supposed to help co-ordinate cross-border crime investigations. Eurojust helps national prosecutors to develop contacts in other countries, which speeds up criminal proceedings. The 15 members of Eurojust are national prosecutors, each accountable to his or her attorney- general or equivalent body, but based in The Hague. Eurojust is a useful invention which has improved co ordination between national law enforcement officials, while managing to avoid difficult political questions about sovereignty and accountability.

The proposal in the draft EU constitution goes a step further, by proposing that Eurojust should become a European Public Prosecutor ­ if and when all the member-states agree. The EPP would have independent powers to investigate, prosecute and take cases to trial ­ but only in crimes involving EU money, according to the constitution text that came out of the Italian presidency. Where the EPP was dealing with a fraud case, national authorities would not be allowed to take part.

This proposal is flawed for three reasons. First, governments should not restrict an EPP to fighting EU fraud alone. If EU governments agree to set up an EPP, they should also use it for other cross-border crimes like terrorism.

Second, a centralised EPP would disadvantage defendants and their lawyers. Defendants' rights would suffer if the EPP were allowed to pick and choose between the national procedures in different member-states. If defence lawyers are to put together an effective strategy, they have to know what procedural rules will apply. The creation of an EPP would thus lead to calls for the harmonisation of criminal procedural law to ensure defendants received a fair trial. The most effective way to resolve this problem would be to codify the rights of defendants across Europe, as well as to establish common EU rules of criminal procedure on the collection and transfer of evidence.

Third, the political reality is that an EPP with truly Europe-wide powers is an anathema to some member-states, such as Ireland and the UK. These countries have a different legal system from their continental counterparts, and they are not prepared to accept the harmonisation of criminal procedures. They do not want a supra-national body to interfere in the decisions of national prosecutors about whether or not to pursue a case, or for an EPP to take control of some criminal proceedings.

Instead of creating an EPP, EU governments should create a 'super-Eurojust'. This body would continue to have one national prosecutor from each member-state and co-ordinate cross-border criminal cases. In addition to the existing office in The Hague, governments should establish a Eurojust branch in each of their national public prosecutor¹s offices. The Eurojust officials in the national capitals would then lead investigations, prosecute and try cases. All Eurojust prosecutors ­ both those located in The Hague and the ones working in the national branches would preserve their national status and accountability, and work in accordance with the laws of their country.

The advantages of a 'super-Eurojust'lie in its capacity to act rapidly. For example, the Spanish prosecution service might want to interview several witnesses in other member-states about the Madrid bombings. Under the current system, Spanish prosecutors would have to send requests to their opposite numbers in the other EU countries, and then wait for them to contact the witnesses and set up hearings. Invariably, the other national prosecutors are busy with their own cases and are not inclined to make a priority of fulfilling a request from a (typically) unknown third party.

But the Eurojust prosecutors based in the national prosecution bodies could work solely on cross-border cases, speeding up investigations. A local magistrate in the west of Ireland or on a Greek island is much more likely to co-operate with a Eurojust representative based in Dublin or Athens than an obscure official in The Hague. The national prosecutors based in The Hague Eurojust office would co-ordinate these efforts.

A 'super-Eurojust'would be a compromise between a full-blown EPP and the existing Eurojust. Member-states need to work together as far as possible against the threat of terrorism. All member-states should be able to sign up to a super-Eurojust. In future, the UK, and Ireland might agree to a more ambitious European Public Prosecutor's Office. But until that time, the EU would be better off setting up a less ambitious body that can quickly begin work bringing cross-border terrorists and criminals to justice.

Mónica Roma was the senior research fellow for justice and home affairs at the CER (2004).