1. Indien de bevoegde autoriteiten van een lidstaat op enigerlei wijze vaststellen dat de feiten die in die lidstaat onderwerp zijn van een lopende of voorgenomen procedure, tevens onderwerp zijn geweest van een procedure in een andere lidstaat waarin een onherroepelijke uitspraak is gedaan, stelt zijn kennisgevende autoriteit de reagerende autoriteit van die lidstaat daarvan zo snel mogelijk in kennis en stuurt zij haar alle desbetreffende gegevens.
2. Indien de reagerende autoriteit via een kennisgeving of anderszins verneemt dat feiten die in haar lidstaat onderwerp zijn geweest van een strafrechtelijke procedure waarin een onherroepelijke uitspraak is gedaan, onderwerp zijn geworden van een lopende of voorgenomen procedure in een andere lidstaat, kan zij overwegen om aanvullende informatie te verzoeken teneinde de mogelijke heropening van de zaak naar nationaal recht terdege te kunnen beoordelen.
ALGEMENE BEPALINGEN EN SLOTBEPALINGEN
Elke lidstaat deelt in een bij het secretariaat-generaal van de Raad neergelegde verklaring mee in welke talen hij de in artikel 5 bedoelde kennisgevingen aanvaardt en in welke talen hij erop zal reageren.
Verhouding tot rechtsinstrumenten en andere regelingen
1. Voor zover andere rechtsinstrumenten of regelingen een uitbreiding van de doelstellingen van dit kaderbesluit inhouden en bijdragen tot de vereenvoudiging van de procedures voor de informatie-uitwisseling tussen nationale autoriteiten over lopende strafrechtelijke procedures en voor het aangaan van het overleg en het streven naar overeenstemming over de vraag welke jurisdictie het meest geschikt is om specifieke feiten die onder de jurisdictie van twee of meer lidstaten vallen, te behandelen, kunnen de lidstaten:
a) bilaterale of multilaterale overeenkomsten of regelingen die op het tijdstip van de inwerkingtreding van dit kaderbesluit van kracht zijn, blijven toepassen;
b) ook na de inwerkingtreding van dit kaderbesluit dergelijke overeenkomsten of regelingen sluiten.
2. De in lid 1 bedoelde overeenkomsten en regelingen laten in ieder geval de betrekkingen met de lidstaten die daarbij geen partij zijn, onverlet.
3. De lidstaten geven het secretariaat-generaal van de Raad en de Commissie binnen drie maanden na de inwerkingtreding van dit kaderbesluit kennis van de in lid 1, onder a), bedoelde bestaande overeenkomsten en regelingen die zij willen blijven toepassen.
De lidstaten geven het secretariaat-generaal van de Raad en de Commissie ook kennis van elke nieuwe overeenkomst of regeling als bedoeld in lid 1, onder b), zulks binnen drie maanden na de ondertekening daarvan.
4. Dit kaderbesluit geldt onverminderd Besluit 2008/…/JBZ*.
De lidstaten treffen de nodige maatregelen om uiterlijk … aan dit kaderbesluit te voldoen.
De lidstaten delen het secretariaat-generaal van de Raad en de Commissie uiterlijk op dezelfde datum de tekst mee van de voorschriften waarmee zij hun verplichtingen uit hoofde van dit kaderbesluit in nationaal recht omzetten.
Uiterlijk … dient de Commissie bij het Europees Parlement en de Raad een verslag in, waarin wordt beoordeeld in hoeverre de lidstaten de nodige maatregelen hebben getroffen om aan dit kaderbesluit te voldoen, indien nodig vergezeld van wetgevingsvoorstellen.
Dit kaderbesluit treedt in werking op de twintigste dag volgende op die van zijn bekendmaking in het Publicatieblad van de Europese Unie.
Owing to the increase in the movement of persons and capital in the European Union ("EU"), advances in technology which took place in the last decades and the extraterritorial application of national jurisdictions in a number of Member States, the criminal justice systems of the EU Member States are increasingly confronted with situations where several Member States have criminal jurisdiction to investigate and bring to trial the same facts relating to the commission of criminal offences.
This means that two or more Member States may for example be able to establish their jurisdiction for the same facts in situations where the commission of a criminal offence involves the territory of several Member States or the effects of an offence are felt in the territory of several Member States. If in these cases it is discovered that two or more Member States are conducting criminal proceedings for the same facts and against the same person, this may lead to a conflict of jurisdiction as the respective authorities exercise their respective competences in parallel. Moreover, in such situations it may be also discovered that two or more Member States are not conducting criminal proceedings against the same person, but are doing so for the same facts or for related facts involving different person(s). Even though such cases do not lead necessarily to conflict as such, it may be appropriate to ensure close cooperation between the respective authorities in order to improve the efficiency of the criminal proceedings and thus enhance the proper administration of justice.
In the interests of effective justice, in light of the aim of the EU to create a common area of Freedom, Security and Justice where primarily the legal certainty for citizens must be guaranteed by avoiding situations which might result in ne bis in idem cases and in order to improve judicial cooperation in criminal matters between the authorities which exercise parallel competence, it is necessary to ensure that in situations where the facts leading to the commission of a criminal offence fall within the jurisdiction of more than one Member State, criminal proceedings are conducted in the best placed jurisdiction and that this jurisdiction is chosen in a transparent and objective way.
Therefore it should be the overriding aim for authorities of the Member States, which are conducting criminal proceedings for the same facts against the same person to agree to concentrate the proceedings in a single jurisdiction, having regard to the specific circumstances of each case In order to ensure that the jurisdiction chosen is the most appropriate one to conduct the proceedings, it is imperative that the respective authorities should be able to exchange information with each other so as to become aware promptly and at an early stage of national proceedings which are ongoing in another jurisdiction. Where proceedings in two or more Member States are conducted for the same or related facts but against different persons, a proper and early exchange of information within the mechanism of direct consultations must be ensured in order to discuss whether concentration of the proceedings in a single jurisdiction is appropriate and effective or to find another effective solution concerning the negative aspects of parallel exercise of competence.
At present, the level of exchange of information relating to cases which may give rise to the situations described above cannot be described as satisfactory. Currently, national authorities may initiate proceedings for facts that are significantly linked to another Member State and proceed to the trial stage without having informed the authorities of that Member State. It might be argued that the authorities of the Member State which is linked to the ongoing proceedings of another Member State would eventually be informed of such proceedings because at some point they would be requested to provide assistance, such as a request to transfer the proceedings, gather evidence or request execution of an European Arrest Warrant, or because the accused person or defendant would raise the question during the trial.
This, however, cannot be considered as sufficient for various reasons.
First of all, such assistance would not always be necessary as sometimes in a cross-border crime there would be enough evidence to bring the case to trial in the jurisdiction where the crime has been detected or a person arrested. Second, a request to assist another Member State does not necessarily arrive at an early stage of the proceedings. Third, jurisdiction issues would not usually be part of such requests and, most importantly, the responsible authorities dealing with such requests are not obliged to raise or even to discuss the question of the best placed jurisdiction.
Owing to the unsatisfactory level of information exchange and the lack of an obligation to enter into consultations on the best placed jurisdiction in situations where there are parallel ongoing proceedings in two or more Member States for the same facts involving the same persons, or for the same or related facts involving different persons(s), in certain situations the choice of jurisdiction is made without any transparency or consideration of any of the characteristics of the various jurisdictions of Member States dealing with the case. This may lead to situations where the jurisdiction in which the proceedings actually take place is not the best placed one. Under the current legal framework, it could be argued that the choice of jurisdiction for specific facts which could be the subject of criminal proceedings in several Member States is left to chance and that this is governed by a "first come-first served" rule. Moreover, parallel proceedings are ineffective, as they amount to dual investment of time, money and energy on part of judicial authorities. This consideration is all the more important in the light of the broad applicability of the EU wide trans-national ne bis in idemprinciple, which is contained in Articles 54-58 of the Convention Implementing the Schengen Agreement, as interpreted by the ECJ in several recent cases1. Within the scope of applicability of this principle it is more than obvious that parallel proceedings for the same facts involving the same persons will eventually result in the impairment of the legal certainty of individuals and one of the proceedings will in fact inevitably result into a waste of resources.
Thus the current legislative status quo does nothing to enhance national authorities' awareness of actual jurisdiction conflicts or their ability effectively to resolve such conflicts. This would not be the case if the national authorities concerned took the initiative to notify other Member States about their proceedings.
In line with the aim of creating a common European area of freedom, security and justice, it therefore becomes necessary to take action so as to eliminate the deficits of the existing legal framework.
The proposed action aims to achieve, in particular, the following objectives:
avoid, as early in the proceedings as appropriate,1 situations where the same person is subject to parallel criminal proceedings in different Member States which might lead to ne bis in idem situations;
ensure closer cooperation in the exercise of the competence of two or more Member States to conduct criminal proceedings in respect of the same facts involving the same person(s) or in respect of the same or related facts involving different person(s) or in respect of the same criminal organization.
Such objectives should be achieved through the following means:
ensuring that there is sufficient exchange of information between Member States, from an early stage, about ongoing proceedings which are significantly linked to another jurisdiction,
making it possible for the authorities of the Member States concerned to enter into direct consultations with each other in order to agree which one is the best placed jurisdiction for conducting the criminal proceedings,
putting in place transparent rules and common criteria which will be applied when Member States are seeking the agreement on the best placed jurisdiction.
These improvements in the exchange of information and the creation of a procedural framework for direct consultations and rules for reaching an agreement could bring multiple benefits for judicial cooperation in the EU. In addition to the more effective avoidance of negative aspects of jurisdiction conflicts, the improved awareness of each other's proceedings, the better determination of the place of the criminal proceedings and the increased transparency and greater objectivity to the way the place for the trial is chosen, the following further benefits could also be expected:
better coordination of parallel investigations and more efficient allocation of resources between the authorities of the Member States which are concerned by the same or related facts;
more thorough consideration of the rights and interests of individuals in relation to the place of the trial including the victims protection;
less likelihood of parallel or repeated criminal proceedings for the same facts;
better application of the principle of mutual recognition both in the pre-trial and post-trial stage as the Member States concerned could be consulted on the place of the criminal proceedings from an early stage; and
fewer instances where evidence is gathered in a manner which is incompatible with the law of the place where the criminal proceedings will be conducted since the venue of the trial can be decided jointly by the Member States concerned before these measures are sought.
The phenomenon of parallel criminal proceedings for the same facts involving the same persons, or parallel criminal proceedings for the same or related facts involving different person (s) that are conducted in two or more Member States is occurring ever more often throughout the European Union. This observation is empirically supported by the results of the survey based on the questionnaire the Czech Republic has drawn up and submitted to the Member States and Eurojust in October 2008.
The questions contained in the questionnaire sent to the Member States was intended to find out the indicative number of parallel criminal proceedings for the same facts that had been revealed in the Member States in recent years, at what stage it was identified that there was a conflict of jurisdiction, how it was resolved, and whether Eurojust was involved or a report was issued on particular problems in communication with the authorities of other Member States. The questionnaire also included questions concerning the prediction of growth of such cases and whether such cases might exist unknown to the authorities.
Concerning the questionnaire sent to Eurojust, it addressed the numbers of cases of conflicts of jurisdiction referred to Eurojust, the nature of those cases, the timing of the referral and the methods of resolving such conflicts. Officially there are 52 cases registered as conflicts of jurisdiction in the Eurojust Case Management System, where approximately two thirds of the cases are bilateral and the rest multilateral. Eurojust reported that such cases are often revealed through MLA requests for competing European Arrest Warrants. Eurojust itself may discover them when cross checking, and in the framework of coordination meetings. Another question concerned the duration of the cases of conflict of jurisdiction, where Eurojust stated that the average time from registration of the case until its closure is around 10 months; however, this information refers only to the period of the registration of the case in the Case Management System and is not related to the resolution of the cases of conflicts of jurisdiction.
The replies to the questions (21 Member States plus Eurojust) are presented in a separate document of the Council Secretariat General (17308/08 COPEN 254 + ADD 1; a summary is set out in 17553/08 COPEN 263).
An annex is also attached to this explanatory report to illustrate the nature and description of the facts of some cases of conflicts of jurisdiction which were identified in Czech judicial practice, as well as cases dealt with by Eurojust.
Background and existing provisions in the area covered by the proposal
As shown above, the current EU legal framework cannot ensure that the authorities of the Member States are aware of each others’ ongoing proceedings when the facts of a case could lead to a conflict of jurisdiction or where the facts are related. Moreover, there is no EU-wide binding procedure in place which would facilitate joint discussions on the best placed jurisdiction for the criminal proceedings in such cases.
In 2000 in its Communication on mutual recognition of final decisions in criminal matters,1 the Commission suggested laying down jurisdiction rules which would have given exclusive jurisdiction to a single Member State. The feasibility of such an approach was examined at an experts' meeting in December 2001. A large majority of the experts and practitioners were skeptical about such a system; they underlined the need for flexibility and to ensure that the competent national authorities would be able to take into account the specific circumstances of each individual case when choosing the most appropriate forum for trying a case.
These findings were confirmed both by a project under the EU Grotius programme 1 and a seminar organized by Eurojust in November 2003 on Eurojust’s competence to issue requests on determining jurisdiction. In this respect, it should be noted that the Guidelines laid down by Eurojust following the seminar, which brought together practitioners and researchers from a wide range of legal systems, state that: "each case is unique and consequently any decision made on which jurisdiction is best placed to prosecute must be based on the facts and merits of each individual case".
Further, the initiative of the Hellenic Republic ( February 2003, a proposal for a Framework Decision on ne bis in idem) 2should be noted. In addition to the principle of ne bis in idem it contained provisions which related to the resolution of jurisdiction conflicts. The proposal also contained certain criteria for determining jurisdiction. It listed the same determining factors as those in Article 9(2) of the Framework Decision on combating terrorism, but without referring to an order of priority unlike that Framework Decision or the Framework Decision on attacks against information systems3. The Member States could not agree on this initiative, in particular on various issues relating to the subject of ne bis in idem, and as a result discussions came to a halt. It should be however emphasized that the current proposal differs to a great extent from the proposal of the Hellenic Republic, as it does not deal with the principle of ne bis in idem as suchand concentrates prima facie on the exchange of information on ongoing criminal proceedings and on rules on resolving the conflicts of jurisdiction. However, as pointed out above, the very existence of ne bis in idem principle is a fundamental reason for the establishment of mechanism as is the one laid down in present proposal which as a kind of a preventive measure approach diminishes the probability of the ne bis in idem situations.
In 2005 the Commission gave consideration to the current legal framework in the Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in idem 1(the "Green Paper"). Additionally, in that Green Paper the Commission outlined possibilities for creation of a mechanism which would facilitate the choice of the most appropriate jurisdiction and made suggestions which aimed at clarifying the scope and the applicability of the EU wide trans-national ne bis in idem principle, which is contained in Articles 54-58 of the Convention Implementing the Schengen Agreement. The present proposal does not comprise nor does it define the concept of ne bis in idem as such and generally does not follow other proposals included in the Green Paper; for example it does not establish a body which would give binding decisions. The present proposal is also linked appropriately with the Eurojust decision in order to have a complementary system, unlike the Green Paper.
At present there are various EU instruments dealing with specific types of criminality, which require Member States to extend their national jurisdiction beyond the territoriality principle for certain offences – e.g. with the active or passive personality principles. However, these provisions do not oblige Member States to exercise their jurisdiction in specific cases. Such provisions can be found in the Convention on the Protection of the EC’s financial interests of 26 July 1995 (Article 4) and the Protocol thereto of 27 September 1996 (Article 6)2, the Convention on the Fight against Corruption of 26 May 1997 (Article 7),3 and the Framework Decisions on the protection of the Euro against counterfeiting (Article 7),4 combating fraud and counterfeiting of non-cash means of payment (Article 9),5combating terrorism (Article 9),6 combating trafficking in human beings (Article 6),7 strengthening the penal framework
to prevent the facilitation of unauthorized entry, transit and residence (Article 4),1 combating corruption in the private sector (Article 7),2 combating the sexual exploitation of children and child pornography (Article 8),3 the laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (Article 9)4and on attacks against information systems5. It needs to be noted that these provisions aim at preventing negative jurisdiction conflicts rather than avoiding or resolving conflicts.
As regards existing legal instruments which may facilitate the avoidance or resolution of jurisdiction conflicts or facilitate the choice of jurisdiction, it is of relevance to mention the European Convention on Transfer of Proceedings of 15 May 1972, drawn up by the Council of Europe6, where several articles deal with preventing and resolving the problem of parallel criminal proceedings However, this Convention has only entered into force in 13 Member States and does not provide for a shared, comprehensive and multilateral procedure to determine jurisdiction.
The second relevant instrument which may facilitate the avoidance or resolution of jurisdiction conflicts is the Council Decision on Eurojust.7 According to Article 7(a), Eurojust may ask the competent authorities of the Member States to undertake an investigation or prosecution of specific acts or to accept that one of them may be in a better position to undertake an investigation or to prosecute specific acts. If a case of conflict of jurisdiction is referred to Eurojust and two or more national members cannot agree on how to resolve it, the College must be asked to issue a written non-binding opinion on the case, provided that the matter cannot be resolved through mutual agreement between the national competent authorities concerned.
While Article 7 applies to the Eurojust College as a whole, national members of Eurojust may also ask the competent authorities “to consider” these measures (Article 6(a)). In principle, the competent authorities need to give reasons if they do not follow a reasoned request by the College (Article 8). These two articles solve the problem of conflicts of jurisdiction, once the case is referred to Eurojust. However, there is no obligation to ask Eurojust to solve such cases.
On the other hand, a new Article 13(8)(a) of Decision on strengthening Eurojust states that the national member should be informed of cases where conflicts of jurisdiction have arisen or are likely to arise. Thus a duty to inform Eurojust has been newly set. However, it does not go beyond the duty to inform, whereas the present proposal provides for a comprehensive procedural framework in order to solve conflicts of jurisdiction.
As regards specific types of criminality, EU criminal law obliges Member States or their authorities to cooperate with each other for the purpose of coming to a decision as to the appropriate jurisdiction under which a case should be dealt with. This is so for Article 6(2) of the Convention on the Protection of the EC’s Financial Interests and Article 9(2) of the EU Corruption Convention1, Article 4(2) of the Joint Action on Criminal Organizations,2 Article 7(3) of the Framework Decision on Euro Counterfeiting, Article 9(2) on the Framework Decision on combating terrorism and Article 10(4) of the Framework Decision on attacks against information systems3. According to these provisions, the Member States involved “must cooperate in order to decide which of them will prosecute the offenders in question with the aim, if possible, of centralizing proceedings in a single Member State”. First, these rules do not provide for a specific procedure to avoid and, if need be, resolve conflicts of jurisdiction and these rules are general and abstract.
Second, these rules are only applicable to specific types of criminality. It should also be noted that the relevant provisions in the Framework Decision on combating terrorism and in the Framework Decision on attacks against information systems provide that in achieving the centralizing of proceedings in a single Member State, "the Member States may have recourse to any body or mechanism established within the EU in order to facilitate cooperation between their judicial authorities and the coordination of their action". This text indeed implies the use of Eurojust. However, though provided the legal regime under the Eurojust Decision, these provisions do not create an obligation on Member States to refer a case to Eurojust.
Finally. the role of the European Judicial Network should be mentioned in this respect. The network was established primarily in order to improve the relations between the competent authorities as regards the exchange of information. This efficient and informal means of fast information exchange may also often contribute to a better awareness of ongoing criminal proceedings conducted in two or more Member States regarding the same or related facts.