There was a look of joy on our President’s face as he welcomed a record number of delegates to the ECBA conference, which took place in Berlin over 1st and 2nd October 2021.
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The conference began with the first edition of the Scott Crosby Human Rights Award, named after a much loved and respected colleague and friend. Alexis Anagnostakis introduced the recipients of the award: Mikołaj Pietrzak, one of our Polish colleagues, and Judge Igor Tuleya, a Polish judge.
Judge Tuleya found himself an ‘enemy of the state’ for having allowed journalists into court during the trial of members of the ruling party, and for his investigations into the ruling party, becoming an icon of judicial resistance and defender of the Polish constitution. Regrettably, due to health reasons, Judge Tuleya was unable to attend to receive his award in person, and so his acceptance speech was read out by Polish lawyer Anna Demenko. The ECBA’s own Mikołaj Pietrzak was recognised for his steadfast defence of our democratic order and the rule of law, under the most challenging of circumstances.
As Alexis said, we did not honour them with the award, but they honoured us by receiving it. The inaugural award was presented to a standing ovation in the presence of Scott Crosby’s widow, daughter and son.
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Nicola Canestrini highlighted the plight of those practising and defending the rule of law in Afghanistan, under threat of torture, imprisonment, and death: not just for them but for their families as well. He called upon others to join the efforts of the Italian lawyers’ representative bodies to support the evacuation and relocation of lawyers facing the most terrible punishment for doing what the ECBA’s members do every day. In a recorded video interview, two Afghan lawyers, a criminal defence lawyer and his wife, a divorce lawyer, explained how the Taliban’s interpretation of Sharia law meant judges, prosecutors and defence lawyers were considered unnecessary. It was truly chilling.
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Dr Oliver Kipper welcomed our keynote speakers in his own inimitable style. He expressed the sentiments that many of us felt at catching up with old friends and meeting new friends at this ‘blockbuster’ conference.
Andres Ritter, the Deputy Chief European Prosecutor, introduced the role and function of the EPPO. Although only just over 100 days old, already some member states are advocating for increasing its competence beyond crimes against the EU financial interests and substantial VAT fraud. He emphasised that the EPPO strived for the highest possible procedural standards, including the rights of the defence.
He sought to dispel concerns expressed by many defence lawyers. He reassured us that forum shopping should not be a concern. There were stated criteria (albeit subject to interpretation) which EPPO prosecutors would follow. A later panel would deal with the challenge to EPPO procedural acts, but Mr Ritter outlined the relevant provisions of the EPPO Regulation.
In cross border investigations, cooperation between different European delegated prosecutors, coordinated by EPPO, was designed to be quick and streamlined: far quicker than mutual legal assistance. Mikołaj Pietrzak expressed his concern about the working arrangements that the EPPO would have with the competent authorities in non-participating states, such as Poland and Hungary.
On admissibility of cross border evidence, he confirmed that there is no question of harmonisation. The law of the member state of the handling European Designated Prosecutor applies. The question of how to deal with foreign evidence remains a matter for domestic courts. Laws vary significantly between member states. Transfers of jurisdiction to a European designated prosecutor in another state is possible, but not easy.
Margarete von Galen provided the defence perspective from the CCBE. She welcomed the transparency shown by the EPPO so far, in identifying the designated prosecutors and publishing working documents. However, the published working documents were disappointing. She lamented a wasted opportunity to establish minimum defence rights on a European level, or to provide for legal remedies to the defence on a European level.
She identified shortcomings on access to the case file (specifically the case file held by the EPPO, rather than held nationally); the right to be heard before decisions of the Permanent Chamber (allocation, reallocation, merging and splitting of cases); and the right to a speedy procedure i.e. a trial within a reasonable time. The only specific focus on the taking of timely steps is in the right to speedy translation.
Vânia Costa Ramos encouraged the EPPO to elaborate guidelines on access to the case file by defence lawyers. The ability to transfer cases between participating jurisdictions meant that defendants should have the same procedural rights, regardless of where the investigation was. In her view, a purposive interpretation of Article 9(2) of the Regulation permitted EPPO to provide common standards and best practice guidance. Respecting the rights of suspects will improve the operation of EPPO. She encouraged defence lawyers to bring challenges in the Court of Justice to provide clarity through judicial interpretation.
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Amedeo Barletta chaired a lively panel on Challenging EPPO Procedural Acts, with expert assistance from Dr Hans-Holger Herrnfeld a former federal prosecutor from Germany, Adrian Șandru from Romania and Elise Martin-Vignerte from Ireland.
Dr Herrnfeld outlined the provisions of the Regulation that provided for review of procedural acts by the domestic courts and CJEU. I would recommend you read his presentation for a comprehensive overview of the relevant provisions.
Adrian Șandru and Elise Martin-Vignerte identified instances where the hybrid nature of the EPPO, and its operation under the national laws of the participating states, created real and serious risks for defence rights. Amedeo and the panel encouraged members to take all available opportunities to bring cases before the CJEU to interpret the Regulation and obtain much needed judicial clarification.
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After lunch, Ondrej Laciak introduced the important work of the ECBA’s working groups, followed by a short presentation by a representative of each of the working groups.
Human Rights - Alex Tinsley
EAW - Rebecca Niblock
EPPO Working Group - Mihai Morar
EPPO Project - Elise Martin-Vignerte
Extradition Forum - Heiko Ahlbrecht and Hans van de Wal
ECBA Website - Gwen Jansen
EUropean LAWyers Training on EPPO - Panayiotis Constantinides
All committees encouraged the participation of new members as there is a lot of work to do! To do so, please contact Antoaneta Roman of the ECBA Secretariat.
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Stefanie Schott then chaired the first of two panels on the EPPO in Operation, entitled Exercise of Jurisdiction by the EPPO. In short, what falls within the competency of the EPPO and what falls within the competency of national authorities.
The panel consisted of Noémie Coutrot-Cieslinski, Josien Pauwelussen, José Eduardo Guerra and Gabriel Seixas.
EPPO is in a unique position receiving information from the EU’s institutions, national authorities and private parties. On receipt of information, it then considers the relevant criteria, including where the crime was committed. The European supervising prosecutor will allocate the case to a European designated prosecutor in the most relevant jurisdiction.
EPPO’s competencies are set out in the PIF Directive - fraud affecting the financial interests of the EU. It includes VAT fraud, but only if the participants are found in two or more member states and with a value of more than 10 million euros. For non-VAT offences, EPPO can only prosecute where the damage exceeds 10,000 euros or was otherwise very important for the EU.
EPPO is also competent to deal with money laundering based on predicate offences set out in the PIF Directive, as well as inextricably linked offences (such as forgery), to provide a full assessment of all the relevant circumstances.
It can prosecute conduct that took place outside member states, provided a member state would have jurisdiction over its citizens for that offence.
Josien Pauwelussen likened OLAFs cooperation with the EPPO to reinventing the wheel whilst driving. In some ways, the introduction of the EPPO has not changed their work. Perhaps 10% of its cases are dealt with under the criminal jurisdiction of EPPO, with the vast majority continuing as administrative / regulatory investigations, as before. The most obvious change is the fact that there are now 2 agencies investigating fraud against the financial interests of the EU. It is possible for EPPO and OLAF to run parallel investigations, albeit with different goals. There is a published working arrangement setting out how it works, with OLAF concentrating on financial recovery.
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Heiko Ahlbrecht chaired the final panel of the day, on the question of access to case files in EPPO cases, with Sebastian Trautmann and Emma Rizzato, respectively the European Delegated Prosecutors for Germany and Italy. Representing the defence view were our dear colleagues Holger Matt and Juan Palomino.
With 22 different national regimes, there are 22 different mechanisms for accessing the case file. Defence rights are governed by national law. This was a missed opportunity. The differences in national law can lead to difficulties. Holger Matt advocated for the guidelines to provide for early and comprehensive access to the case file to meet the highest european standards, including the provision of an effective remedy. There needs to be a common standard of what is included, for translations, for access, but most importantly there needs to be fruitful interaction.
In response, the EPPO representatives were clear that they cannot go against national law. They offered an overview of the provisions of the EPPO regulations that set up the main rules on the access to the case files, mentioning the use and the functionality of the Case Management System (CMS). Emma Rizzato also analysed the basket of the procedural rights protected by the regulation and the need for the States to implement the EU Directives on the matter.
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The final session of the day was the General Assembly. Roland Kier stepped down from the Executive board, and Dominika Stepinska-Duch and Jaanus Tehver stepped down from the Advisory Board.
Following a fully democratic process, the following appointments were made to the Executive Committee and Advisory Board:
Executive Committee:
Vincent Asselineau - Chair
Amedeo Barletta – Vice Chair
Vânia Costa Ramos – Vice Chair
Miroslav Krutina – Vice Chair
Rebecca Niblock – Vice Chair
Neil Swift – Treasurer
Hans van de Wal – Secretary
Advisory Board:
Heiko Ahlbrecht
Alexis Anagnostakis
Constance Ascione-Le Dréau
Jaime Campaner Muñoz
Artūras Gutauskas
Vladimir Hrle
Gwen Jansen
Oliver Kipper
Ondrej Laciak
Magdalena Makieła
Elise Martin-Vignerte
Carla Reyes
Rosa van Zijl
The final act of the conference was a celebration of the involvement of Marie-Anne Sarlet over the last 17 years.
Report by Neil Swift
