This proposal is being presented with a view to legislative action on the basis of, inter alia, Article 31(1)(d) of the Treaty on European Union ("TEU"), according to which common action between judicial and other competent authorities of the Member States on judicial cooperation in criminal matters must include preventing conflicts of jurisdiction between Member States.
Moreover, this proposal is designed to give effect to what has been declared in the Hague Programme for strengthening freedom, security and justice in the EU ("Hague Programme") which was approved by the European Council at its meeting on 5 November 2004. In particular, it follows point 3.3 which stated that "with a view to increasing the efficiency of prosecutions, while guaranteeing the proper administration of justice, particular attention should be given to possibilities of concentrating the prosecution in cross-border multilateral cases in one Member State" and point 3.3.1 which asked that further attention should be given to additional proposals, including on conflicts of jurisdiction so as to complete the comprehensive programme of measures to implement the principle of mutual recognition of judicial decisions in criminal matters.
Summary of the present proposal and explanations concerning its most important Articles
The proposed Framework Decision aims to create a mechanism to prevent potential conflicts in parallel exercise of competence between two or more authorities of the Member States and a mechanism for better awareness of ongoing criminal proceedings which could be related to each other.. It establishes a procedural framework under which national authorities must exchange information about ongoing criminal proceedings for specific facts in order to find out whether there are parallel ongoing proceedings for the same facts involving the same persons in other Member State(s) and under which the national authorities must enter into direct consultations in order to reach an agreement on the best placed jurisdiction for conducting criminal proceedings for specific facts which fall within the jurisdiction of two or more Member States. It also aims at addressing the situations of parallel criminal proceedings in respect of same facts or related facts involving different persons, where in such cases the direct consultations would improve the cooperation between the respective authorities. Moreover, it establishes rules and common criteria which must be taken into account by the national authorities of two or more Member States whenever they seek the agreement on the best placed jurisdiction for conducting criminal proceedings for specific facts.
The instrument establishes a procedure for exchange of information where competent authorities of one Member State are conducting criminal proceedings for specific facts and need to find out whether there are ongoing proceedings for the same facts involving the same person in other Member State(s). It also applies where competent authorities of one Member State are conducting criminal proceedings for specific facts and are already aware, by other means than a notification procedure, that competent authorities of other Member State(s) have been conducting criminal proceedings for the same facts involving the same person, or for the same or related facts involving different person(s). In such cases, the notification procedure (Articles 5 to 11) does not apply and the respective States should enter straight into direct consultations.
The proposed Framework Decision is not intended to address the negative conflicts of jurisdiction where a negative conflict means that no Member State has established its jurisdiction over the committed criminal offence. It is neither the aim of the proposed instrument to harmonize the rules on jurisdiction in the Member State.
One of the key provisions is Article 5 which establishes an obligation for a competent authority to notify the authorities of other Member State(s). The purpose of the notification is to find out whether there are ongoing criminal proceedings for the same facts involving the same person(s) in other Member State(s). Such obligation would apply in the event that the authorities of a Member State discover that facts which are the subject of ongoing proceedings demonstrate a significant link to a Member State other than the one where proceedings are ongoing. In that event, the competent notifying authority of a Member State where the proceedings are ongoing must notify the existence of these proceedings to the responding authority of a Member State which is significantly linked to them.
Article 6 gives a definition of a “significant link”. A link must always be regarded as “significant” where the conduct or its substantial part which give rise to the criminal offence took place in the territory of another Member State. In other cases, such as for example the location of important evidence or nationality of the accused person, it must be decided on a case by case basis whether a link is of such a significance that it might lead to a presumption that there could be ongoing proceedings for the same facts in other Member State. When deciding, reference should be made in particular to the common criteria which are listed in Article 15. The notification procedure does not cover criminal offences punishable in the notifying State by a custodial sentence or a detention order for a maximum period of up to one year, and thus the very minor cases, which could cause undue bureaucracy, are excluded. The moment of such notification to the responding Member State must happen as soon as practicable, that means a moment when it is flexible and effective to make such notification having in regard the specific circumstances of each case which might not allow to make the notification always as soon as possible. Furthermore, the term “as soon as practicable” also provides for flexibility in the discretion of the judicial authority, whether to notify or not, in connection with Article 20 which stipulates the relationship with other legal instruments or arrangements. It should be understood that it might not be deemed in any case practicable to notify in situations where EAW or request for the transfer of criminal proceedings is sent to another Member State.
Another important element of the proposal is to be found in Articles 9 and 10 which lay down an obligation for the responding authority to respond to the notification. The response should contain the basic information as to whether or not there are ongoing proceedings in the responding State for some or all of the facts which are subject to the ongoing proceedings in the notifying Member State, or whether there have been proceedings for the same facts in the past. Article 10 provides for time limits within which the information should be conveyed to the notifying authorities. These time limits are especially important if delays in the criminal proceedings where there are not any ongoing proceedings in the responding State are to be avoided. The compulsory elements suggested for Articles 9 and 10 will enable the notifying authority to perform a qualitative assessment of the circumstances of the particular criminal offence which gave rise to the prosecution.
Article 12 opens Chapter 3 concerning direct consultations, which represent another step towards settling conflicts of jurisdiction. The respective authorities must enter into direct consultations. Firstly, the obligation to enter into direct consultations arises when the responding authority confirms that there are ongoing proceedings for some or all of the facts involving the same persons which are the subject of a notification, or it intends to initiate such criminal proceedings. In this case the commencement of direct consultations is directly linked to the procedure of notification and relates to the contents of the response. The consultation may be initiated by either of the respective authorities, but in all cases the response should be sent to the notifying authority. Secondly, direct consultations are obligatory if a competent authority of a Member States becomes aware, by whatever means, that parallel criminal proceedings for the specific facts involving the same persons are already ongoing or anticipated in other Member State(s). In this case, the notification procedure is not necessary as the conflict of jurisdiction is already known. It should be understood that the consultation phase is not mandatory if the conflict has already been resolved during the notification-response procedure. This Article does not prevent the authorities from entering into direct consultations where they feel them to be necessary in order to reach agreement on the best placed jurisdiction or to solve any other problem related to the parallel ongoing proceedings concerning the same or related facts involving different persons.
The aim of direct consultations, leading to effective closer cooperation between the competent authorities conducting the criminal proceedings in two or more jurisdictions, is to reach agreement between the competent authorities as regards the best placed jurisdiction. Where appropriate and practical, the agreement should be such that the criminal proceedings are concentrated in a single Member State. If possible, concentration of the criminal proceedings in one Member State, e.g. through the transfer of criminal proceedings, should then take place; otherwise the setting, timeframe and modalities for any other effective solution concerning the negative aspects of parallel exercise of competence should be explored. Article 15 establishes the rules under which the best placed jurisdiction must be chosen. There is a rebuttable presumption in favour of conducting the proceedings in the territory of the State where most of the criminality occurred, that is in the place where most of the factual conduct performed by the persons involved occurred. This general presumption is based on the fact that presumably the most important items of evidence as well as the victims will be located in the territory of the Member State where most of the criminal activity has occurred. In addition the territoriality principle was chosen because it is a leading principle of criminal jurisdiction common to all Member States. However, where the general presumption according to paragraph 1 does not apply due to the fact that there are other sufficiently significant factors for conducting the criminal proceedings, which strongly point in favour of a different jurisdiction, the competent authorities of Member States must consider those additional factors in order to reach agreement on the best placed jurisdiction. Article 15(2) gives a non-exhaustive list of those factors, which are not in any order of priority. The set of criteria was mainly inspired by the Eurojust guidelines, set out in the 2004 Annual report as well as by the 1972 Convention on Transfer of proceedings.
Article 16 addresses the very important link to Eurojust and its mechanisms in solving conflicts of jurisdiction. Generally, any competent authority may ask for an opinion or refer a case to Eurojust at any time during the criminal proceedings, which is in line with the Eurojust Decision. Article 16 par. 2 addresses situations before the referral to Eurojust. It makes the referral of a case to Eurojust mandatory for cases which fall within the jurisdiction of Eurojust where it has not been possible to reach an agreement on the best placed jurisdiction for conducting criminal proceedings for specific facts or in situations where an agreement has not been reached within 10 months following entry into direct consultations.
Article 17 addresses situations where even Eurojust cannot intervene anymore, and agreement has not been reached, either at all or within a time limit. It covers cases which do not fall within the competence of Eurojust and cases where Eurojust intervened but agreement has not been reached. In such cases, the Member States must have a duty to inform Eurojust of the failure and the reasons for it. The purpose of this article is to provide for collection of such information and for conclusions to be drawn on possible future improvements of the mechanism on the settlement of conflicts of jurisdiction.
Article 18 is of a slightly different nature, although related to the exchange of information on parallel proceedings. It deals with the cases where it becomes apparent, either through the notification procedure or by any other means, that the facts which are the subject of ongoing or anticipated criminal proceedings in one Member State were the subject of proceedings which have been finally disposed of in another Member State. This usually signifies the existence of a ne bis in idem situation, in which only the authorities of the State where the proceedings have been finally disposed of may further deal with the case and possibly reopen proceedings , if this is permitted under their national law. This Article encourages the exchange of information and evidence which should help the respective authorities in duly assessing the possibility of reopening as well as in the conducting of ensuing proceedings, if appropriate.
Article 20 deals with the relationship to other legal and non-legal instruments which contain provisions related to prevention and settlement of conflicts of jurisdiction. Basically it states that all instruments which contribute to or reach the aims of this Framework Decision more effectively must have priority over it.
Legal basis and choice of instrument
The proposal is based on Article 31(1)(c) and (d) and Article 34(2)(b) Treaty on the EU and has the form of a Framework Decision based on Article 34(2) (b) TEU.
Subsidiarity and proportionality principles
Member States do not currently provide through their national laws and criminal procedure rules for an obligation to exchange information for facts which demonstrate links to another Member State or for a duty to exchange views and/or jointly to discuss on the basis of common criteria which is the best placed jurisdiction for bringing to trial facts that could be prosecuted by several Member States. Therefore, in the absence of any common action and in order for there to be progress in terms of better exchange of information about proceedings for facts which could lead to a conflict of jurisdiction and of laying down a duty to discuss jurisdiction issues on the basis of common criteria, Member States would have to act unilaterally to make provision in their national law so as to provide for these matters. This approach would be unlikely to succeed since it would require uniformity of national provisions across 27 Member States acting separately. Such uniformity would be more readily achievable by common action in the form of a Council Framework Decision. This Framework Decision does not go beyond what is necessary to achieve that objective. It is also without prejudice to Article 33 TEU.
It is expected that the implementation of the proposed Framework Decision will entail no significant additional operational expenditure to be charged to the budgets of the Member States or to the budget of the European Union. Moreover, in the long run costs are expected to be saved as in many cases it is assumed that the costs of conducting the whole proceedings in several Member States will be prevented.
Examples of jurisdictional conflicts between EU Member States as experienced by judicial authorities of the Czech Republic and by Eurojust
To demonstrate better the existence of the problem in practice see a short illustration of some real cases of conflict of jurisdiction that have been revealed (i) in the Czech Republic, and (ii) cases dealt with by Eurojust:
(I) CZECH REPUBLIC
The Czech authorities were conducting criminal proceedings against a German national. The case was brought to a trial in 2004; however the accused person was evading the process. Consequently, the arrest warrant was issued and sent to Germany, but German authorities refused to execute the arrest warrant and decided to conduct the proceedings themselves. Thus, the proceedings in the Czech Republic were suspended (in 2005) and in about two years the German prosecuting authority informed of the decision not to proceed with the case as all the relevant witnesses and important evidence were available on the Czech territory. At the end, the German authorities re-considered the previous decision when saying that the Czech Republic was a better placed jurisdiction for conducting this particular proceedings. The proceedings are not ended by far.
The Czech judge stated that if the matter would have been thoroughly communicated with the German authorities already in the year 2004, the case could have already been resolved and the proceedings would have been finally disposed of by now. The lack of agreement caused more than 2 years delay and did not lead to the procedural economy.
A German national was in 2007 convicted by a Czech court for smuggling of drugs which he was buying in the Netherlands and transporting through Germany to sell it in Plzen, in the Czech Republic. He was performing this criminal activity since 2001 to 2006. German authorities issued a European arrest warrant for the purpose of conducting the criminal prosecution for a criminal offence of importing heroine from the Netherlands in order to sell it in February 2006, which constituted one of the acts of the criminal offence for which he was convicted in the Czech Republic. The European Arrest Warrant was issued in about the same time as the judgment of conviction by the Czech court.
From the above-mentioned it is clear that without the existence of the issued EAW, the German and Czech authorities would not know that they are (or were) conducting parallel criminal proceedings for the same facts. However, if there was a proper knowledge of the important facts already at the very early stage, with most probability the German authorities would have not started the proceedings, moreover, they could have been in close cooperation with the Czech authorities and either discovered other important relevant facts enabling to handover the case to the Czech authorities or together with the Czech authorities decided that the German authorities had better placed jurisdiction for conducting the criminal proceedings.
The above mentioned cases are just examples from the numerous cases of a similar type that have happened in the Czech Republic during several past years and we were lucky to get to know about them. The Czech Republic, as well as some other Member States, does not have a centralized information database concerning numbers of such cases of conflicts of jurisdiction, but from the information of the judges, prosecutors or evidence of the EAW issued or refused, it is clear that the cases do exist and are not of marginal number. The parallel proceedings are for example discovered via the transmission of the EAW issued by German, Austrian or Slovakian authorities or via sending a MLA request. Many cases are concerned with criminal offences of smuggling of drugs or enabling other persons of illegal crossing of the border, where one or more states have jurisdiction for conducting criminal proceedings.
The significant link to the other state(s) in such cases is usually clear, e.g. the sustained loss or the nationality of the offender, but currently the judicial authorities do not have any obligation to inform the other state. When the EAW reaches the respective authority, the proceedings are usually at an advanced stage, and it is not effective anymore to agree that the authority which issued the EAW would continue the proceedings. If the communication about the facts between the respective authorities was commenced already at the early stage of the proceedings, such approach would lead to the more effective determination of the best placed jurisdiction.
Below an illustration of cases of conflicts of jurisdiction which have been referred to and dealt with by Eurojust is given:
In 2005, the French authorities seized in French territory a Portuguese truck with a Portuguese driver who transported among other goods considerable amount of packs of cigarettes of different brands. The absence of proper legal documents that justified such cargo led the investigators to assume that they were in the presence of a crime of smuggling of cigarettes and tax fraud. Two different investigations started in Portugal and in France partially for the same facts. Some elements were retrieved that might let do the conclusion that all the proceedings should be concentrated in Portugal, even including those facts investigated in the French criminal file.
In 2001 the British citizen “A” died in Alicante in Spain. The British prosecution service was seeking assistance in co-ordinating enquiries into the activities of another British citizen “B” bearing in mind the forgery of various documents that belonged to “A”. In the file opened in 2001, there was a suspicion that the “B” had been involved in the death of “A”, but it was decided that there was insufficient evidence to prosecute her for murder. In 2006, new evidence of forgery and fraud were presented to the anti-fraud prosecution services in the UK by the relatives of the victim. It was decided that a new series of enquires should be conducted by the Spanish authorities in order to reopen the criminal proceeding initiated in 2001.
A criminal organization operated from Spain by recruiting Portuguese workers, who were initially retained in Portugal and, at a later stage, sent to Spain to work in similar conditions to slavery. The crime itself and the respective criminal proceedings were initially discovered and initiated by the Office of Prosecution Services of Porto in Portugal. It was considered that there was a need to undertake parallel investigations in both countries in a well coordinated way. This coordination led to the concentration of the proceedings in Portugal that was considered the best place to prosecute.
Between 1978 and 2006 19 murders were committed in different countries (Germany, Spain, France, Italy and Czech Republic). A German national was suspected having committed these crimes and was put in detention. The Spanish authorities issued an EAW to Germany requesting the surrender of the suspect but when all the investigations were connected, the German authorities announced that the EAW could not be executed because of the pending investigation in Germany. On the other hand, the French and Spanish jurisdictions are not competent to deal with murder offences when they are perpetrated in foreign countries by foreign citizens. In 2006 a positive conflict of jurisdiction between Germany, Spain and France had to be solved.
For reason regarding the “fair trial principle”, the suspect should have the possibility to stand trial in his own judicial system and language and the victims’ relatives from foreign countries should take part in the proceedings as parties. It was considered that the German judicial authorities were better placed to handle the totality of the crimes committed by the defendant.
German authorities sent an EAW to Portugal, requesting the surrender of a German citizen who was accused of drug trafficking. The suspect was in custody in Portugal awaiting trial. Another Portuguese investigation related to the same criminal activity and facts were in progress. In the meantime, the time limit for the execution of the EAW was exceeded due to ongoing co-ordination between both authorities. The final result of this case was that the Portuguese proceedings were transferred to Germany and Portuguese Court of Appeal – the executing authority – after suspending the execution of the EAW, decided to surrender the suspect to Germany.