Independence of Prosecutors and Rule of Law: an EU Perspective

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.

Public Prosecution Services in the Netherlands: How Independent Are They?

In response to the CJEU interpretation of ‘issuing judicial authority’ in the European arrest warrant (EAW) context, the Dutch Surrender Act was swiftly amended: the competence to issue EAW’s 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 claims 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.

Unexpected Agreement between Belgium and Spain on an ‘Independence Movement’: a New Criminal Procedure Requiring a More Independent Prosecution Service

The CJEU stated that Belgian prosecutors can be an ‘EAW-issuing judicial authority’, even if the Justice Minister can order them to start or continue procedures. The system will however undergo a major overhaul: the Napoleonic investigating judges would be abolished and prosecutors would become responsible for all criminal investigations. Remarkably, the resistance of one of few other remaining bastions of investigating judges, Spain, is crumbling too. Just when the controversial prosecution of Catalan politicians and the appointment of a former minister to chief prosecutor had brought the debate on the influence of politics on prosecution to fever pitch, a 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.