The European public prosecutor’s office and the judicial review of criminal prosecution

Abstract

In relation to the pending negotiations over the establishment of a European public prosecutor’s office (hereinafter, EPPO) as well as its role and structure, one often faces the question of the accountability and judicial review of the prosecutor’s prosecutorial and investigative functions. More precisely, it seems that it is not clear who should exercise the review, what needs to be reviewed and when such a review should be engaged. Moreover, the draft provisions on the judicial review have been amended several times. This article is aimed at depicting the current state of the subject matter and the main issues under discussion with an emphasis on the issue of judicial review of criminal prosecution in pretrial proceedings. The starting point is the hypothesis that the EPPO’s decision to initiate an investigation really represents a decision on the initiation of criminal prosecution, and as such, it needs to be subject to judicial review. This hypothesis is substantiated by the right to effective judicial review enshrined in Article 47 of the Charter of fundametnal rights of the EU, the right to judicial review in the Treaty on the Functioning of the European Union and an analysis of the principle of mandatory prosecution considering the impact of investigations initiated by the EPPO on the fundamental human rights of suspected persons.