| Montréal,
le 12 juin 1999 |
Numéro
39
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(page 6) |
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MUSINGS BY MADDOCKS
CORPUS JURIS
by Ralph Maddocks
There’s a nice Latin phrase to ponder. Literally, it means Body of Law
but in fact, it is the title of the proposed European Union’s code for
conducting criminal procedures which was drawn up by a group of academic
experts. Corpus Juris was in the news again last April 14th, when
the European Parliament voted 399 to 48, with 35 abstentions, to adopt
a recommendation, from its Civil Liberties and Internal Affairs Committee,
that Corpus Juris be now presented to member states for their views. |
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Corpus Backgroud
Corpus Juris first saw the light of day in April 1997 when it was introduced
to a specially invited audience at a Seminar of the Instituto Europeo
de Espana. In the accompanying official programme it laid out the objectives
as follows:
« FIRSTLY:
it seeks to call the attention of jurists in general to the need for effective
protection of the Community budget, particularly in connection with fraud
against subsidies; and SECONDLY: the organisers wish
to make known the content of the CORPUS JURIS
for protection of these financial interests which has been conceived as
the embryo of a future European Criminal Code. »
Those last eight words rang alarm bells in Britain which, in November 1998,
expressed its disagreement by voting against the idea at an Inter-Parliamentary
Conference in Strasbourg where the idea was put forward for informal discussion.
However, on that same occasion, fourteen other states expressed general
agreement with the proposal.
The Amsterdam Treaty, due to come into effect in 2000, whose Article 209a
specifically invokes newly created budget crimes is the enabling legislation
allowing Corpus Juris to be introduced as a measure to «
counter fraud affecting the financial interests of the Community
». Chapter 8 Section (d) Article 209a states that the Community
and Member States shall counter such fraud and illegal activities «
through measures to be taken in accordance with this Article
». Member States are required to « coordinate
their action » against such fraud; and the Council is
to adopt the necessary measures « with a view to affording
effective and equivalent protection in the Member States ».
These measures are to be adopted in accordance with « the
procedure referred to in article 189b » which calls
for co-decision with the EU Parliament but provides for NO
NATIONAL VETO.
There is in Article 209a, however, an ambivalent one-line statement that
such measures « shall not concern the application of
national criminal law and the national administration of
justice ». The British Foreign & Commonwealth Office,
during the Amsterdam treaty debate, told British MPs that it was
relying entirely on this « safeguard »
to stop Corpus Juris from being rammed down their throats. However,
on 11 February 1998, in a report presented to the EU Parliament the Rapporteur
of that Parliament's « Committee on Civil Liberties
and Internal Affairs », one M. Bontempi,
described quite clearly and directly how they intend to circumvent this
statement. In any event, if the matter is disputed it will be sent for
adjudication by the European Court of Justice, where Britain has no national
veto. Following the final ratification of the Amsterdam Treaty by all member
states, the EU will be able to immediately invoke Article 209a and put
forward Corpus Juris as a « measure against fraud
». Britain will no doubt then try to say « No
» but will be outvoted.
Under Corpus
A number of European politicians have made statements which show clearly
their determination to ratify this piece of legislation which in the case
of Britain and Ireland, as it would in the case of Canada or the USA, exchange
the inquisitorial model for the trial by jury system. Jose-Maria Gil-Robles,
president of the Parliament, called it « an important
model for the realisation of a common European juridical and judicial space
(...) based on the protection not just only of the community taxpayer but
of the European citizen against all and any criminal activity ».
The former EU Commission President, Mr Santer, together with
Mrs Theato, Chairperson of the Inter-Parliamentary Conference
on Corpus Juris held in Brussels on 9-10th November last, «
announced their firm intention », at the conclusion
of the said conference, to utilize precisely Article 280 of the Treaty
to introduce Corpus Juris. « The creation of
the European Public Prosecutor is unavoidable », they
said.
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« Police
will be allowed to make arrests
without evidence (a heavenly
state of affairs
for some) and the accused
will be assumed
to be guilty instead
of innocent. »
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Corpus Juris conceives of a European Public Prosecutor, similar
to the French investigating magistrate, working in parallel with prosecutors
in member states. Ultimately this would lead to the EPP having responsibility
for initiating investigations and bringing court proceedings. The EPP would
be independent of national authorities and institutions but each country
would attach a delegate prosecutor to his or her office. Among the more
radical proposals contained in Corpus Juris are that the EPP may
« request » detention without trial for up to
six months, renewable for three months at a time, without any maximum limit.
A prisoner will not be allowed any assistance from anyone apart from a
visit by his lawyer. Arrest warrants would be valid throughout the EU and
detention across borders would be permitted.
For example, a man in London could be accused of having bribed a customs
agent in say, Rome (corruption of a public official is one of the crimes
envisaged by Corpus Juris), arrested and sent to rot in an Italian
prison cell until he was brought to trial. There would be no extradition
proceedings, Britain’s (and Canada’s if it were involved) tradition of
habeas corpus would disappear. The principle which has been enshrined
in Magna Carta since 1215 will become a footnote to history. No more would
an accused be judged by his equals, because Trial by Jury would disappear
too. There would no longer be a right to silence, nor will an accused’s
ordeal be limited to one trial. A prosecutor will be empowered to retry
the accused again and again for the same offence. Police will be allowed
to make arrests without evidence (a heavenly state of affairs for some)
and the accused will be assumed to be guilty instead of innocent.
All of this has gone virtually unremarked by the British public. Some of
the quality papers have reported on it, but this attack on the rights and
freedoms of the citizens does not seem to be a matter of pressing concern.
Certainly not enough to draw much attention away from such important matters
as the possibility of Manchester United winning the Premier League, the
European Cup final and the FA Cup Final all in the same year. Of course,
all this is the way the present, or indeed any, government likes it, a
fait accompli is easier for them to deal with as an option. On the
topic of Corpus Juris, the general attitude of UK governments has
been to successively deny its existence, admit that it exists but say it
doesn’t matter or say that it does matter but will never happen. Now that
it is happening they will say that there is nothing that they can do about
it. Mr Blair and his government will face something politicians
do not like, a stark alternative: accept the measure docilely, thus surrendering
Britain’s ancient rights and liberties, or withdraw from the European Union.
There will be no other option.
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