Behind Corpus Juris
On the face of it Corpus Juris represents a proposed
new EU-wide criminal code for the prosecution of fraud
against the EU budget.
Many - seeing it from this restricted light - have welcomed
the proposal, viewing it as a long overdue determination
to crack down on the large, and growing, volume of EU
fraud and providing the detailed judicial mechanisms with
which to do so.
In fact, those actually aware of the detail of the Corpus
Juris, until recently, were few. The original seminar
launching the proposal was held in Spain in April 1997
before a selected audience of what the EU likes to call
'jurists'. Other restricted seminars for those with direct
interest have followed. In Dublin, on 8th June 1997, such
a meeting was hosted by the Irish Association for the
Protection of the Financial Interests of the European
Communities.
According to a press statement from the Irish Association's
president, Mr Justice Carney, the most radical of the
"Corpus Juris" proposals is Article 18, which
he revealed: "provides that for the purpose of the
investigation, prosecution, trial and execution of sentence
concerning the newly created European budgetary crimes
the territory of the member states of the union shall
constitute a single legal area".
This is indeed the case. And therefore, for the first
time, the judicial jurisdiction of the EU would not only
be that of the supreme authority to whom national courts
defer when seeking interpretive legal guidance. The EU
would become the actual, and single, prosecuting authority
in cases of suspected budget fraud, with the right, through
its agents, both to conduct investigations into its suspicions
AND conduct trials within all member countries according
to its OWN rules of law as described in Corpus Juris.
When one recognises this, several issues unfold. With
the introduction of Corpus Juris, procedures of investigation
and the conduct of trials in such cases would no longer
be those originally of the member state in which they
took place. National law would no longer be subject to
the EU 'merely' in the manner of interpretation of laws
originating in Brussels. In fact, procedures according
to native national law would no longer run within a member
state where individuals or organisations were to be investigated
and prosecuted, within that state, for EU fraud.
There is also an additional fear. Namely, that Corpus
Juris - by which member states "shall constitute
a single legal area" - may not merely be intended
for application in cases of EU budget fraud, but could
be the first step towards introducing a single system
of criminal justice that applied to ALL criminal proceedings
within the EU. Could such fears be justified? The answer
can be found by quoting directly from the original seminar
on budget fraud/Corpus Juris held in San Sebastian, Spain:
"the objectives of the Seminar are twofold; 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."
This description of Corpus Juris is unequivocal. The
proposals for conducting investigations and prosecutions
to protect the EU's financial interests have been conceived
as the precursor for an EU-wide Criminal Code! [J.S.]
THE FOLLOWING ASSESSMENT is from Torquil Dick-Erikson
"Corpus Juris" is a plan prepared by the EU
Commission (XXth DG) at the request of the European Parliament,
to tackle fraud affecting the EU budget. It will set up
a European Public Prosecutor, on the continental inquisitorial
model, who will have over-riding jurisdiction throughout
Europe, to instruct national judges to issue arrest warrants
against suspects, have these held in custody for indefinite
periods pending investigation (or transported to other
countries in Europe), with no obligation to produce prosecution
evidence and no right to a public hearing during this
time.
The cases are then to be tried by special courts, consisting
of professional judges and "excluding simple jurors
and lay magistrates". They will be empowered to hand
down sentences of up to seven years. Our rights of Habeas
Corpus and Trial by Jury are thereby to be overruled.
It is the expressed intention of the EU Commission, and
of the President of the EU Parliament Don Gil Robles,
for this system to be an "embryo European criminal
code", later to be extended to all kinds of crime.
On November 8th and 9th 1998 an Inter-Parliamentary Conference
was held in Strasbourg, where the Corpus Juris project
was put forward for informal consideration. 14 Member
States expressed general agreement with the idea. Britain,
represented by Lord Goodhart and Mr Humphrey Malins, did
not. (Details of this conference can be obtained from
the Law Society's office in Brussels).
However, Article 209a of the Amsterdam Treaty, which
specifically invokes newly created budgetary crimes, enables
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 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 involves co-decision with the
EU Parliament and provides for NO NATIONAL VETO.
Article 209a does, however, include an ambivalent one-line
statement that such measures "shall not concern the
application of national criminal law and the national
administration of justice". In correspondence with
MPs during the Amsterdam treaty debate the Foreign &Commonwealth
Office revealed that it was relying entirely on this ineffectual
"safeguard" to stop Corpus Juris being steamrollered
in. But in his report to the EU Parliament, filed on 11
February 1998, the Rapporteur of that Parliament's "Committee
on Civil Liberties and Internal Affairs", M. Bontempi,
describes directly how they intend to circumvent this
statement.
In all events, 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 say "No". But HMG will face a stark alternative:
either accept supinely, and have our ancient rights and
liberties taken from us and trashed; or tear up the Treaty
of Rome. No other option will be available.
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