Are prosecutors becoming the true masters of criminal procedure in Europe? That was the question posed by Fair Trials, an international organization dedicated to defending the right to a fair trial, during its webinar “Growing Prosecutorial Power in European Criminal Legal Systems,” held on March 4, 2021, and moderated by Laure Baudrihaye-Gérard, its Legal Director for Europe.
The panel featured three speakers. Marianne Wade, a professor of criminal law at the University of Birmingham, discussed the role of the prosecutor in various European systems and the challenges facing the future European Public Prosecutor’s Office. Jacqueline Hodgson, a professor of law at the University of Warwick, analyzed the increasingly managerial approach to criminal prosecution in France and England. Aurélia Grignon then offered a practical perspective: she demonstrated how these developments are manifesting in litigation involving the European arrest warrant and how the balance between the investigating judge and the public prosecutor’s office is shifting in France.
This presentation also provided an opportunity to revisit the issue of judicial independence within the French legal framework governing arrest warrants. The question of independence is most often raised in connection with the public prosecutor’s office, due to its organizational affiliation with the Ministry of Justice. It was from this perspective that the Court of Justice of the European Union examined the issue in its December 12, 2019, judgment (joined cases C-566/19 PPU and C-626/19 PPU). But the “independence” of the investigating judge also warrants examination from a more functional perspective. The investigating judge holds a role that Robert Badinter described as nearly impossible—”half Maigret, half Solomon”—serving as both investigator and judge. It is the investigating judge who decides, as information comes in, whether to issue the arrest warrants that give rise to European Arrest Warrants (EAWs), without a judge outside the case reviewing this decision, and while oversight by the investigating chamber is only possible once the person has been placed under investigation—that is, when the warrant has already taken effect.
The webinar, which was conducted in English, was followed by a Q&A session with the participants.
