Autor: Gheorghe BOCŞAN
Publicat în: Revista Universul Juridic nr.8/2018
Disponibil online: aici.
Abstract: This paper operates an analysis of the real possibility for the European Delegated Prosecutor to
put in practice the dispositions of art. 104 para. (5) from the EPPO Regulation, which sets out the
following: ”In the absence of an agreement pursuant to paragraph 3 of this Article or a recognition
pursuant to paragraph 4 of this Article, the handling European Delegated Prosecutor, in accordance
with Article 13(1), may have recourse to the powers of a national prosecutor of his/her Member State
to request legal assistance in criminal matters from authorities of third countries, on the basis of
international agreements concluded by that Member State or applicable national law and, where
required, through the competent national authorities. In that case, the European Delegated
Prosecutor shall inform and where appropriate shall endeavour to obtain consent from the authorities
of third countries that the evidence collected on that basis will be used by the EPPO for the purposes
of this Regulation. In any case, the third country shall be duly informed that the final recipient of the
reply to the request is the EPPO”.
At the first reading it seems that such a possibility falls outside the fundamental principle of the
international public law, namely” pacta sunt servanda”, because it will put the European Delegated
Prosecutor in the awkward situation to ask a non-EU country to provide him/her with mutual legal
assistance in a non-national case, but upon the bases of an international agreement between the two
counties.
After a complete study of the bilateral international agreements between Romania and the
non-EU countries, we came to the conclusion that the problem depends firstly on the way the
international agreement defines the mutual judicial co-operation, namely if it refers to national cases
or to cases defined upon the application of other criteria. As an example, The Bilateral Agreement on
Mutual Legal Assistance in Criminal Matters between Romania and Canada establishes that MLA
should be awarded if refers to a case built upon an offence that is criminalised by the Romanian or
Canadian law. So, the main criterium is not linked to the concept of a national case. If the bilateral
agreement follows such a paradigm, there should not be a problem to ask for MLA in the framework
of para. (5) of art. 104 EPPO Regulation.
The second problem raised by the present paper regards the situation where, after receiving
MLA according to the above model, the EPPO Preliminary Chamber refers the case to a European
Delegated Prosecutor (EDP) from another Member State that the one to whom the first EDP
belongs. Will the court vested with the judgment of the EPPO case will accept evidence obtained in
the way described above?
The conclusion of the paper is that a general assessment of the text of art. 104 para. (5) of the
EPPO Regulation is almost impossible to be operated but instead the evaluation of such a possibility
should be done on a case by case basis.
Keywords: EPPO, MLA, European Delegated Prosecutor, international agreements, pacta
sunt servanda, Vienna Convention on the Law of Treaties
