Max Planck Institute for Foreign and International Criminal Law

The European area of security, freedom, and justice is constantly growing. National boundaries between the Member States are not only losing their economic and political significance, they are losing their legal significance as well. Through diverse cooperation treaties in the area of mutual recognition and harmonization of substantive criminal law, the Union is successively working on building a common legal area.

Thus, on a transnational, European level, there is a strong current in support of the expanded cooperation of prosecutorial agencies. This has led to the creation of a considerable number of European institutions, such as Europol, Eurojust, and Office de Lutte Antifraude (OLAF), and possibly to the future establishment of a European prosecuting agency. With this focus on criminal prosecution (and prevention), however, there is an increasing risk that the rights of suspected persons will be swept aside and that they will not receive adequate attention. In particular, the corresponding procedural questions concerning the right to a criminal defense and the institution of criminal defense, as such, are being neglected. A counterbalance to the European prosecution agencies – in the form of a transnational criminal defense agency, for instance – through which the balance of power in criminal proceedings could be preserved in accordance with Art. 6 para. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms does not exist. Various approaches to solving this problem have been proposed. These proposals, submitted by academics and bar associations, range from the institutionalization of a European defender’s office (Eurodefensor, Ombudsperson) to the creation of a European criminal defense network, to the development of multinational defense teams. Nevertheless, at present the need for research in this area remains urgent.

Against this backdrop, the goal of this project is, in the initial phase, to examine the specific constellations of cases and problems that actually occur and the experiences defense counsel actually have in transnational European criminal proceedings. This phase encompasses an in-depth exploration of the practice and legal basis of existing European prosecuting agencies – including the interactions between these international agencies and their counterparts on the national level. Effects on the defense posture will come to light during this process. By means of this empirical, problem-oriented method, findings relevant to the development of a European criminal defense institution or a “European” defender will be sought in a second phase. In light of the grave changes in European criminal procedure in practice and because of the absence of a European law of criminal procedure, corresponding new challenges for the defense could, in the ideal case, be identified. Such results need to be checked for their consistency with basic principles, many of which are found in the Convention for the Protection of Human Rights and Fundamental Freedoms.

The study is divided into three parts. In the first part, real, concrete cases and problems encountered by the criminal defense in transnational European criminal procedure are analyzed. The second part involves the identification of national and transnational principles relevant to criminal defense, the foundations on which they are based, and approaches taken to these and related issues throughout history. This appraisal is intended to scrutinize existing pan-European principles of criminal defense with regard to their usefulness in solving existing practical problems as well as to develop further principles for this purpose. On this basis, the previous models of a European criminal defense institution and a "European" defender will be studied in the third part and new recommendations submitted.