This year’s conference was dedicated to Future Challenges in the Field of Cross-Border Investigations, Prosecution and Defence, with a special focus on corruption investigations. It took place in Europe’s westernmost capital City Lisbon.
The beautiful reception at the Portuguese Parliament, the Palácio de São Bento, offered a festive introduction to Portugal, giving a glance at the Parliament’s history, warm welcoming words by the Deputy Speaker of Parliament, Teresa Caeiro, and ECBA’s chair Holger Matt. It culminated in the excellent fado presentation of Joana Almeida (click here for her Facebook page).
The programme of the subsequent day was rich of topics and inspirations. The Portuguese Minister of Justice, Francisca Van Dunem, started out with an inspiring talk: While Europe was facing insecurities and omnipresent and destabilising risks of terrorism, organised crime and unprecedented migration flows, States had the duty to uphold the rule of law and protect fundamental rights and freedoms of individuals, including procedural rights of the defence. She went on stressing the role and importance of European defence lawyers in fighting for this aim (“o tempo é vosso - it is your time”). By references to Martin Niemöller and Harper Lee’s Atticus Finch, Ms. Van Dunem reminded us not to kill the mockingbird, but to find together adequate and proportional answers to the challenges of Europe’s present society, in full respect of fundamental rights. The subsequent speech of the Director of the Centre for Judicial Studies Joao Silva Miguel stressed the importance of legal training and welcomed the ECBA’s efforts in this view. These talks were well received by the ECBA’s chair, Holger Matt, who pointed to the necessity of a second Road Map focussing on the remaining criminal procedural rights not yet covered by the first Road Map (e.g. rights of witnesses).
The first panel then addressed two main topics: the European Public Prosecutor’s Office (EPPO) as well as conflicts of jurisdiction. Peter Csonka (European Commission) updated the participants on the current discussions regarding the EPPO. With the financial crisis, followed by Brexit, Europe was not in the best position to reach a compromise on this matter. It was hoped that the Council would reach a compromise by the end of this year, but, as Csonka admitted, “hope is the last one to die”. He then outlined briefly the most difficult issues on which to find a European-wide compromise, i.e. judicial review, relations with Eurojust, relations with third countries and relations with non-participating Member States. Many things were still unclear, e.g. whether EPPO should also be competent for VAT fraud, where EPPO should be seated, whether the suspects should be entitled to legal aid (an idea promoted by the Commission), and how conflicts of jurisdiction could be solved.
Csonka’s presentation was followed by Charlotte Röber, who is currently engaged in a PhD programme at Maastricht under André Klip’s supervision. She shared her research findings on how experience from international criminal courts could be made fruitful for EPPO, giving the example how concurrent jurisdiction issues had been solved at the international level and what lessons could be learnt from this when setting up the EPPO.
The topic of conflicts of jurisdiction was more generally explored from a theoretical perspective by Professor Katelin Ligeti, who reported the latest findings of the joint CJCL project, a 3-years research project of an international working group of academics and experts which had already been presented at the ECBA’s last year’s autumn conference in Luxembourg. Ligeti pointed to the risks of conflicts of jurisdiction in criminal law as they could be detrimental both to the rights of the defendants and the victim, as well as to the proper administration of justice, and the consequent need for regulation in this area. She proposed an update of the existing “European soft law” on conflicts of jurisdiction by updating the Eurojust Guidelines and presented different potential options on how conflicts could be solved. These proposals will be published by the end of October and made available to the ECBA.
In the following, Eurojust’s President Michele Coninsx stressed Eurojust’s potential role as not only a consulting body but rather a decision-maker in solving conflicts of jurisdiction and regretted the Member States’ reluctancy to involve Eurojust. She promised an update of Eurojust’s Guidelines. Peter Csonka responded that initially, Eurojust was not meant to only have an advisory role, but rather be a deciding body. But this role had been deluded. He agreed that there were problems of jurisdiction conflicts and they did matter. However, the problem in his view was that Member states did not want to give up their own jurisdiction. He also agreed with the ECBA that defence lawyers / suspects should have a voice in matters of jurisdiction.
The second panel updated participants on current activities of the ECBA. An outstanding achievement of the EAW Working Group was the handbook on the European Arrest Warrant (EAW), which has been made available online at http://handbook.ecba-eaw.org/ and provides useful guidance to European defence lawyers when defending an EAW case. A pdf version will shortly be available for download. On a related note, Rebecca Niblock (UK) later on presented the creation of a new extradition lawyer’s network to enhance cross-border cooperation in extradition cases, namely the Defence Extradition Lawyers Forum (DELF).
Further, ECBA’s human rights officer Scott Crosby drew the audience’s attention to the current situation in Turkey’s justice system, and shared a letter from a Turkish judge, available online. He also proposed the foundation of a new working group focussing specifically on human rights issues. Holger Matt stressed the need of a second Road Map with a set of new measures, e.g. as a new Measure (a) video-recordings of police interviews (which are still not common practice in some Member States, e.g. Germany), (b) trial standards, (c) appeals & remedy, (d) compensations for miscarriages of justice, (e) conflicts of jurisdiction, and (f) evidence issues. He stressed the need of a mandatory criminal defence with legal aid to counter balance EPPO. Oliver Kipper further on presented a new sub-association of the ECBA dedicated at fraud and compliance issues, the EFCL.
Peter McNamee subsequently introduced the participants to the CCBE’s and ELF’s current project on implementation of the EAW and gave an idea of law-making in the EU.
The subsequent panel addressed the topical issue of corruption in sports. Benoît Keane explained the diversity of legislation existing within the EU on corruption in sports and discussed the Council of Europe’s Convention on the Manipulation of Sports Competitions which had been adopted in September 2014 and as of today (October 2016) needs 3 more ratifications to come into force. Unlike in other types of bribery cases, in sports an undue advantage can already consist in no more than “the glory of winning”.
Carla Gabriela Reyes subsequently reported on recent development s in Switzerland connected to the FIFA case, especially the recent legislative changes to tackle corruption in sports. Main changes that have come into force on July 1st 2016 include that private sector bribery has become an ex officio offence and does not require a distortion of competition any more. However, contrary to GRECO’s recommendations, private sector bribery cannot be a predicate offence for money-laundering.
Chaired by the conference’s host, Vânia Costa Ramos, some aspects of the Petrobras scandal were explored and discussed. A special guest from Brazil, Pedro Iokoi, gave a comprehensive presentation on Operation lava Jato (Car Wash). The presentation reflected the never-ending story on one corruption scandal followed by the next, outlining 35 (!) stages of lava jato. Further, the issue of awarded whistleblowing was discussed. The subsequent panel discussion among Pedro Iokoi, Duncan Grieve (UK), Filipa Marques Júnior, Henrique Salinas and José Ranito (all Portugal) touched upon connected problems such as extradition of nationals outside the scope of EAW, ne bis in idem, and extraterritorial whistleblower protection.
The conference was concluded by a panel consisting of members of the ECBA’s recently established working group Anti-Corruption in Europe (ACE), who discussed an imaginary case scenario of a European cross-border internal investigation and the most vital legal issues in such a case. Among others, legal privilege, labour law duties to cooperate vs. right to self-incrimination, data protection issues, ne bis in idem, extraterritorial (UKBA) risks, local law risks, reporting duties, whistleblower protection as well as potential civil law remedies were discussed by the panellists Adriana de Buerba (Spain), Tobias Eggers (Germany), Jurjan Geertsma (NL), Vladimir Hrle (Serbia), Chris Whalley (UK) and myself as chair from their respective perspectives. The working group is still collecting country reports from ECBA members on their national anti-corruption rules, to be posted on the ECBA’s website.
by Anna Oehmichen
