European Public Prosecutor’s Office could end impunity for Spanish elite

by Deborah Cater
European Public Prosecutor's Office has powers over Spanish legal cases

The European Public Prosecutor’s Office is a new community institution that will revolutionise the Spanish justice system. The European body can intervene directly in the Spanish judicial system.

With its powers, the European Public Prosecutor’s Office(EPPO) , which starts work on 1 June, will be able to put an end to the impunity of the Spanish elite, especially the banking elite. Of particular note is the possibility of halting a criminal investigation in one country and transferring it to another EU country if there are traces of judicial corruption.

Making history

Two European institutions, the European Commission and the Court of Justice of the European Union (CJEU), receive a number of complaints from Spain about judicial corruption. The European Commission President Ursula von der Leyen pointed out certain countries, without naming names, generate a huge amount of complaints.

The EPPO can make history and hopefully put a definitive end to judicial corruption in Spain and the resulting impunity that elites still enjoy in the courts. Italian banker Andrea Orcel claimed to have a recording showing a high-ranking Banco Santander executive saying the bank only lost the trials it wanted to lose. Can this still happen in a democratic country? Apparently. But in Spain, where reform of the justice system is slow following the death of dictator Franco, the elite often get away scot-free.

Democratic dignity of Spain in hands of the EU

So in the end it will be Europe that saves Spain’s democratic dignity. The new EU prosecutor’s office has important powers, and new revolutionary instruments, to intervene directly in the Spanish legal system.

For example, they have the power to stop an investigation in one Member State and continue proceedings in another if there is sufficient evidence of judicial corruption. Also, if they believe the manner of an investigation will benefit the elite. In the case of the alleged Banco Santander money laundering case, the EPPO could have adjusted the investigation after the expert reports established there was indeed a money laundering structure. However, the court dismissed the case.

Casa Las Dunas Spain

Uniformity

In the uniform jurisdiction established by the most recent European Union regulations, the EPPO and the Union institutions act as criminal prosecutors, in accordance with the priority principle and the abuse principle. To this add the principle of equality. This means the rules of criminal law should be completely changed, since the situation that a judge leads the investigation is hardly compatible with certain basic principles of the EPPO.

Tasks of the EPPO

According to Article 4 of Regulation (EU) 2017/1939, the EPPO is ‘responsible for the investigation of criminal offences affecting the financial interests of the Union […]. For that purpose the EPPO shall conduct investigations’. The EPPO must also ‘accompany and ensure the coherence of investigations … at Union level’. This occurs in several articles of the Regulation but which is difficult for the EOM to achieve if it is not the body in charge of the investigation.

Article 13(1) of the Regulation reiterates ‘the Deputy European Public Prosecutors shall have jurisdiction over the investigations and prosecutions which they have initiated, which are assigned to them or which they have taken over by virtue of their powers of referral’. Moreover, the EPPO has sufficient power to issue orders directly to the police and prosecutors of the states. They must follow those orders.

EU law prevails over Spanish law

The principles of primacy, abuse and equality mentioned earlier are the starting points. Article 5(3) of the Regulation states: ‘investigations and prosecutions carried out on behalf of the EPPO shall be governed by this Regulation. National law applies to matters not governed by this Regulation. Where a matter is regulated both by national law and by this Regulation, this Regulation shall prevail.’

In addition, the Deputy European Public Prosecutor assigned to Spain will be responsible for the entire investigation (including police matters). He will call on the competent court, acting as examining magistrate, if necessary to obtain judicial authorisation for the exercise of these measures. He will use the grounds that they affect fundamental rights or that a provision of the Code of Criminal Procedure requires such authorisation.

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