Specialisation
Challenging decisions of the European Delegated Prosecutor
Art. 42 Regulation (EU) 2017/1939
When a European Delegated Prosecutor orders a measure affecting a suspect's rights, the practical question is before whom, and on what grounds, it can be challenged. The answer is not found in the Regulation alone: the European act must be translated into its corresponding category under Spanish procedural law.
This is a matter of procedural rigour more than advocacy, and it decides the outcome of most of these proceedings. The investigation stage concentrates the decisions that later determine the trial, and a good number of them are, in practice, irreversible once carried out.
Every measure that isn't challenged in time is a safeguard lost for good — which is why how fast the defence reacts matters as much as the legal argument itself.
Scope of work
- Challenging investigative measures before the reviewing judge
- Applications for nullity for lack of authorisation, disproportionality or inadequate reasoning
- Review of the scope of searches, seizures and interception of communications
- Submissions on jurisdiction made while they can still be effective
- Legal opinions for firms handling the main proceedings
When to call
- A measure has been ordered and there are doubts about its legal authorisation
- The time limit to appeal is running and the correct route is unclear
- Investigative steps have been carried out in another Member State
- You need an independent technical view on steps already taken
Frequently asked questions
Can a decision of the European Delegated Prosecutor be appealed?
Article 42 of Regulation (EU) 2017/1939 refers judicial review of the European Public Prosecutor's procedural acts to the national courts under domestic law, reserving the preliminary ruling procedure and a limited set of matters for the Court of Justice. Protection exists; what it requires is correctly identifying the applicable domestic route.
Who is the reviewing judge (juez de garantías)?
Organic Law 9/2021, which implements the Regulation in Spain, resolves the institutional fit by assigning to a reviewing judge the oversight of measures that require judicial authorisation. The defence therefore has an identifiable forum before which to argue that a specific measure is void or disproportionate.
Is it better to challenge the whole investigation at once?
That tendency is seen in practice, and it is usually a strategic mistake. The reviewing judge's oversight operates on specific acts, so a diffuse challenge usually ends in dismissal, which is then invoked as validating everything done up to that point. It is more effective to target the specific measure and its authorisation.
How much time is there to react?
As soon as possible, and that is not just a figure of speech. Many of these measures are irreversible once carried out, and submissions on jurisdiction lose their force once the investigation has become consolidated, at which point they tend to be dismissed by reference to the doctrine preserving procedural acts already taken. The specific time limits depend on the route applicable to each act.