While European prosecution has expanded, the right to defense has not received sufficient attention. Hence, this study analyzes various possibilities of providing for an aggregate balance in criminal proceedings through the creation of a "European" criminal defense and suggests original approaches for the solution of these problems.

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.