For the newly established European Public Prosecutor’s Office to be a real game-changer, it must have sufficient financial resources and enough full-time European delegated prosecutors to conduct independent investigations in the member states, chief prosecutor Laura Codruța Kövesi said in her first exclusive interview in the new position.
Kövesi became the first European Public Prosecutor in October. Before that, she had been the chief prosecutor of Romania’s National Anticorruption Directorate.
The European Court of Human Rights has ruled this week that your revocation from the position of chief prosecutor of DNA (the main anti-corruption body in Romania) before the end of your mandate, violated your rights. What does this ruling mean to you personally? Do you think it will help others in a similar position in Europe?
It is a victory. Not only for me, it is a victory of the Romanian prosecutors and also of the judiciary in Europe. This decision is very important because it clarifies the independence of prosecutors in all of Europe and implicitly also of all judiciary. It strengthens the position of all magistrates in Europe. This decision is of a historical nature, because it is the first time that the ECHR has extended the guarantees of independence applicable to judges to the prosecutors. Form now on, this decision will protect those who defend the independence of judiciary and the rule of law against political interference.
High hopes are placed in you and in the EPPO as such. A year ago, families of murdered journalists Jan Kuciak and Daphne Caruana Galizia wrote an open letter expressing strong support for your nomination. In the letter, they wrote: “Ms Kövesi knows what it takes to prevent more murders of journalists who investigate corruption, money laundering and serious tax fraud.“ How do you deal with such high expectations?
At that moment, that support was very important for me and I really appreciated it. I am the same person, with the same experience and in the new position, I will try to do the best like I did in Romania in my previous position. I know that there are high expectations. The EPPO is a very complex structure, so our objective is to improve the level of protection for the European money and we will do that by investigating the crimes related to financial frauds. The EPPO will be independent and this is very important because the independence of the institution, the independence of prosecutors is the first premise to obtain efficient results in fighting corruption and other serious crime. The main role of EPPO will be to investigate cross-border crimes, especially crimes involving European funds, crimes involving VAT and also corruption and money laundering if these two crimes are related to our main jurisdiction. Everything will depend on the resources. If we will have enough resources we will investigate efficiently.
You have voiced concerns about the EPPO not having sufficient financial and personal resources to be a real game-changer. Are the member states doing enough for the institution to succeed? Do you have sufficient support from the European Commission and Parliament?
After I took my new position I started an evaluation. Of course, the budget was an important issue that I was focused on. If we do not have enough resources, we cannot start the activity of the EPPO, we cannot work efficiently. As a prosecutor, I have 25 years of experience so I know very well what a budget can mean for an institution. It is also related to the independence. Even if we are independent but we do not have a strong budget, it is very difficult to do our job. With my colleagues, I tried to find the real number of cases that we will receive from the member states. The main issue when we talk about the budget and the resources is the number of European delegated prosecutors. Those will be prosecutors that will work in the member states and will effectively investigate the cases. At this moment, under the initial assumption of the European Commission, we will have 32 and a ¼ prosecutors. Yes, a ¼, it is not a mistake, I was also surprised, because I have not heard about a quarter or a half prosecutor in my life, but this was the estimation. Based on the statistic we received from the member states, at the beginning of the EPPO, in the first days, we will receive around 3 000 cases. It obvious, that it is impossible to manage this workload with only 32 prosecutors.
Another example – we will have some member states, where we already have data from, where there are hundreds of cases under investigation. It is very difficult to manage hundreds of cases with one or two prosecutors. Of course, the number of European delegated prosecutors who will work in the member states should be decided together by the EPPO and national authorities. But everything depends on the budget. If the Commission establishes the number and will stick with only 32 European delegated prosecutors it will be very difficult for us to start the activity and to work efficiently. The important issue for the future of EPPO will be how the budget for 2021 will be established. This is a decision for the Commission as a whole, to put a good proposal for 2021 on the table so that the budgetary authority can decide if we will have more or less money.
The negotiations on the Multiannual Financial Framework are being protracted. The European Commission has decided to rework the budget focusing more on pandemics and the economic crisis. Do you think this could create any risks for the EPPO or for the resources that it needs?
The EPPO has not yet started to investigate cases, but at this moment, all the crimes that are committed are under our jurisdiction. Now we have a new context with this COVID-19 pandemic. There are a lot of reasons to believe that our jurisdiction will increase. We do not know now how the next MFF will look like. Will there be more funds? Will there be more flexibility to use them? If so, I anticipate that there will be more work for the EPPO. It is logical. We have mandatory competence so we have to investigate all the cases that fall in our jurisdiction. This is our institutional role and we cannot negotiate this. Based on my previous experience and seeing the warnings that others practitioners around Europe have issued in this period, I can say that more funds, more flexibility in using EU funds unfortunately also means opportunities for fraud and for corruption. In this context, I also read a Europol report which is very interesting. Organized criminal groups are especially strong in anticipating and exploiting every opportunity, on an industrial scale. We have to prepare an appropriate response and I think the best response is EPPO.
If I understood correctly, you need to wait for the budget to be resolved to start negotiating with the member states on the number of European delegated prosecutors that you need.
Yes. I would prefer not to have any constraints in these negotiations because the number of the European delegated prosecutors should be decided by the European chief prosecutor with the national authorities. It is very difficult to share 32 prosecutors between 22 participating states. We started the negotiations in January. Before this crisis, I have visited 17 members states and we started the discussion with the ministers of justice, general prosecutors and all the representatives of the national authorities. It is obvious that for some member states one or two prosecutors are not enough to do a good job. The main issue is also the way how these prosecutors will work. There is an assumption that we can have part-time prosecutors. Based on my experience, for the prosecutor to work in the morning for EPPO and in the afternoon for his national office, is not the right thing if we want to have an efficient fight against financial criminality. First of all, it relates to the independence of the prosecutors. If they will be double-hatted, there will be problems with their independence all the time. The second issue is related to responsibility. If a prosecutor would have European and also national cases it will be very difficult to make him responsible if he would not investigate the cases on time. This is the reason why I very much insisted to only have full-time prosecutors. For their independence, their responsibility and, more importantly, for efficiency. At this moment we are constrained in establishing the number of European delegated prosecutors because in our financial framework it is stipulated that we can only have 32 and a ¼ prosecutor.
Will the EPPO start operation by the end of this year, as was originally planned?
I did not set that date. It was the assumption of the Commission, which should decide when will the EPPO start its activity. Of course, since I took this job I started to prepare everything to be ready to start in November 2020, as initially planned by the Commission. Still, we have to resolve two issues: College and budgetary resources. But we have started to recruit the personnel, to prepare the internal rules, and we took all the measures necessary to be ready to start at the end of this year.
What would be the processing capacity of the EPPO – in terms of the number of cases – at the beginning and once you get to the full speed?
To be efficient, we should start with the full speed from the very first date. Based on the statistics received from the member states, the consultations we have and our methodology to calculate the number of cases, we expect that in the first days we will receive around three thousand cases. Of course, we can choose to deal only with some of them, but these are just the cases sent by the member states, those that are already registered. But we will also receive complaints from individuals, reports from other European institutions, so the total number will obviously exceed three thousand cases. Adding to that, we expect that each year we will receive two thousand new cases. So, we need to be prepared to start full speed from the first day. My priority as the chief of EPPO is to start properly and to investigate efficiently all cases that we will receive.
Public prosecutor´s offices are organised differently in member states, follow different organisational models, some of them are more centralised and hierarchical. Could this hamper the effectiveness of the EPPO in some countries?
In my view, the EPPO is the European model. It´s a new institution created to increase the protection of European financial interests, and the most important provision is its independence. EPPO will be independent of national governments, Commission, other European institutions, bodies and agencies. This is very important because all the delegated prosecutors that will be part of EPPO will also be independent, so the national specificities cannot influence their work. And that is the standard that should be now followed by all public prosecutor´s offices in Europe. The importance of the independence of the public prosecutors is supported also by the aforementioned decision of the ECHR. Without that the independence of the judiciary as such, or judges specifically, could be compromised. And without independence we cannot speak about efficiency in combatting financial fraud and corruption. It´s not just about prosecutors, of course. Without this independence, we cannot speak about the rule of law, about a fair trial for all parties, about equality in front of the law. This makes the independence a crucial rule for the functioning of the EPPO. And this should be a model followed by all national public prosecutor offices.
Are you confident that the existence of the EPPO could support the independence of public prosecutors in member states in cases when they come under political pressure?
Yes. European delegated prosecutors will work under the direction of the EPPO, so they will be independent. Also, the structure of the EPPO itself will be very important. We will have the permanent chamber formed from three European prosecutors from different member states and they will supervise investigations in individual member states. For example, European prosecutors from Bulgaria, France and Germany will investigate cases from Romania. This will make it very difficult for anyone from that country to interfere in their decisions, and only this permanent chamber will have the authority to oversee the work of delegated prosecutors in that country.
Not all EU member states have joined the enhanced cooperation forming the EPPO. What would you offer as the main argument for governments that are still out, for joining the EPPO? Alternatively, should the participation in the EPPO be a precondition for easier access to the EU funds?
To join the EPPO, it´s a political decision. I´m a prosecutor, so I will speak as a prosecutor. Under the existing legislation, we should be in contact and discussion with member states that have not joined the EPPO. We will start it after we finish consultations with the participating member states. Of course, for us, it would be better to have colleagues from all EU members. I believe, our work and results could be a good argument for others to join, if they are really interested in the efficient investigation of financial fraud, cross-border financial crimes. I do not wish to investigate small cases, our role is focused especially on cross-border crimes, to solve cases that the national offices cannot solve because of the inherent limitations of the national systems. For example, at this moment it is very difficult for a prosecutor to administer the evidence at the territory of another member state. But we could do that through EPPO. So, one of the values of the EPPO is the ability to obtain the aggregate information at the European level, to conduct investigations without the limitation of national borders. The EPPO will also generalise the use of the most efficient investigative tactics. All these arguments could be good reasons for joining the EPPO cooperation, but in the end, it is a political decision. As for the mechanisms that could help to convince the non-participating member states, this question goes beyond my jurisdiction. As a prosecutor, I can comment only on technical aspects.
Some cases related to financial fraud or the misuse of European funds could be politically very sensitive, involving politically well-connected persons. Investigating those case might not increase your popularity in some circles. Are you prepared to deal with situations when some government might try to limit the work of the EPPO?
Talking jokingly, my previous experience was good training for this role. The pressure on the public prosecutor in Romania fighting the corruption was very high. Campaigns of intimidation and harassment were intense. Of course, the role of the EPPO will be to investigate complex, especially cross-border cases. There is a possibility that they ´d involve people in “important positions”, or people that are rich and influential. But here we are back on the issue of independence – that´s the guarantee that we will do our job. Another guarantee will be the budget of EPPO. If we don´t have to limit our activities because of insufficient resources, we will do a good job. I hope all the delegated prosecutors will be independent, professional and courageous, with high integrity. If coupled with sufficient legislative tools to do our job, we will have all the factors for a good-functioning EPPO. Personally, I´m not nervous about the pressure. I deal very well with it. When I was appointed as the chief of the national anti-corruption directorate in Romania, I said that if someone would try to influence me, try to ask me to not to do my job, or try to tell me how to investigate the case, I would make it public. I will do the same in this position. As the European chief prosecutor, I will not take instructions from anybody and will respect the independence of my colleagues in the EPPO.
What would happen if the member states were to adopt changes that would limit the independence of the delegated prosecutors? Do you have any instruments to defend your institution?
From the very beginning, it is crucial to have only full-time delegated prosecutors. I think we cannot work with double-hatted prosecutors who would be taking instructions from their national bosses and from the permanent chamber. Secondly, the system of permanent chambers ensures that any influence would stop at this level. I have some experience with attempts to influence the work of the public prosecutors. We will be in permanent contact with delegated prosecutors, support them, help them, to defend them in public if necessary, because I´m sure that their work could sometimes provoke an intimidation campaign or harassment. We will work as a team.
[Edited by Zoran Radosavljevic]