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Brussels set to regulate transfer of criminal proceedings between EU Member States

A proposal for a Council Framework Decision on the transfer of proceedings in criminal matters was recently presented by 16 Member States, (Belgium, Bulgaria, the Czech Republic, Denmark, Estonia, Greece, Spain, France, Lithuania, Latvia, Hungary, the Netherlands, Romania, Slovenia, Slovakia, and Sweden). According to the Council Explanatory Report “there are several legal instruments on transfer and coordination of proceedings applicable in relations between the Member States” but “There is (…) no common legal framework on the procedure of transfer of proceedings (…).

There is the 1972 Council of Europe Convention on the Transfer of Proceedings in criminal matters ratified by 13 EU Member States. The UK has not ratified this Convention. In 1990, the EU Member States signed an agreement on the transfer of proceedings in criminal matters but it has never entered into force as it has not been ratified by all Member States. But all EU Member States are parties to Convention on Mutual Assistance in Criminal Matters since 2000. There are also bilateral agreements or informal cooperation between Member States.

The Explanatory Report pointed out that “The Member States of the European Union are increasingly confronted with situations where two or more Member States have jurisdiction to investigate and bring to trial the same or related criminal offences.” However, it fails to demonstrate the need for EU legislation on the transfer of criminal proceedings. There are already several instruments that govern cooperation in the area of transfer of proceedings. One could say that it would have been better continue to apply the abovementioned Conventions as well as the bi-lateral agreements.

Moreover, it is important to recall that last April the Council agreed on a general approach for a draft framework decision on prevention and settlement of conflicts of jurisdiction in criminal proceedings. The draft Framework Decision is intending to prevent situations where the same person is subject to parallel criminal proceedings in different Member States as regards the same facts. Member State’s competent authorities would be obliged to exchange information on these situations. Under the proposal where it is confirmed that parallel criminal proceedings are being conducted in two or more Member States in respect of the same facts involving the same person(s) the requesting State and the requested State competent authorities are required to enter into direct consultations in order to reach agreement. Such consultations may lead to the concentration of the criminal proceedings in one Member State. Hence, this Framework Decision would also provide a mechanism for transfer of proceedings. The European Scrutiny Committee has pointed out that there will be “different consultation procedures between Member States in these two Framework Decisions.

The aim of the proposed Framework Decision is to “increase efficiency in criminal proceedings and to improve the proper administration.” It provides for common rules to regulate the conditions under which criminal proceedings initiated in one Member State may be transferred to another Member State.

The Parliamentary Under-Secretary of State at the Ministry of Justice, Lord Bach, has explained to the ESC that the UK has no formal mechanism for transferring criminal proceedings to other Member States consequently the draft Framework Decision would have far-reaching consequences to the UK. The UK would have to change the way it deals with transferring proceedings as well as it would widen the UK's principle of territorial jurisdiction. Hence, the Government has not co-sponsored this Framework Decision.

According to the European Voice Jodie Blackstock of Justice, believes that the proposal might “lead to member states transferring cases to reduce costs on their justice systems.”

The scope of the Framework Decision is far from clear as the proposal provides for several definitions but "transfer of proceedings.” The proposal does not specify what stages in the proceedings the framework decision would apply.

The EU Member States would be required to designate judicial authorities to act, under this Framework Decision, as competent authorities. "Transferring authority" is defined as the authority which is competent to request transfer of proceedings and "receiving authority" is defined as the authority which is competent to receive a request for transfer of proceedings. However, Member States may designate non-judicial authorities as competent authorities for requesting and accepting a transfer of proceedings provided that they have competence for taking similar decisions under their national law.

Under the draft framework decision a Member State, which is competent to prosecute an offence, would have the right to ask another Member State to institute proceedings against a person who is suspected of having committed an offence, if that Member State has jurisdiction under its national law or pursuant Article 5 of the draft Framework Decision.

The issue of competence to prosecute when proceedings are transferred between Member States is dealt in Article 5 which states “For the purpose of applying this Framework Decision, any Member State shall have competence to prosecute, under its national law, any offence to which the law of another Member State is applicable.” This provision provides, therefore, for the applicability of each Member State criminal law to any offence to which another Member State criminal law is applicable.

The draft framework decision would confer competence on the Member State of the receiving authority in cases where that Member State would not otherwise have competence and if this is required to improve the efficient and proper administration of justice. Thus, this provision would have the effect of conferring competence on Member States if they receive requests for transfer of proceedings.

The Member States would have competence solely for the purposes of applying the Framework Decision and its exercise is limited to cases where there is a request for proceedings from the transferring authority of another Member State. This provision would not apply to cases where the national law already provides the Member States with the necessary jurisdiction.

This draft framework decision would confer, therefore, a subsidiary jurisdiction which may only be exercised if the Member State which has original jurisdiction waives the proceedings against a suspected person, allowing the transfer of proceedings concerning that offence to another Member State.

According to the Council Explanatory Report competence is conferred to the Member State of the receiving authority “by giving a request for proceedings an automatic effect of making the criminal law of the Member State of the receiving authority applicable.”

Lord Bach has said to the ESC that the Government is concerned about the automatic transfer of jurisdiction under Article 5 "as UK jurisdiction is generally based on where the offence was committed (territorial jurisdiction) and the exercise of extra territorial jurisdiction by the UK is more limited than by many other Member States." Consequently, this provision may conflict with UK’s national law and its jurisdiction approach.

According to the ESC this provision “gives national courts competence to try a criminal offence that is not prescribed by UK law. (…) Instead, jurisdiction comes from the EU Member State that is transferring the proceedings.” The draft framework decision provides for the double criminality requirement and requires the application of the national law of the receiving Member State. However, the ESC has doubts about Article 5 consistency with the requirement for double criminality envisaged in the draft Framework Decision. Hence, the ESC believes that the proposal would not "improve the efficient and proper administration of justice."

Article 7 establishes the criteria for requesting transfer of proceedings. This provision requires that such request may only be done if “transferring proceedings would lead to an improvement of an efficient and proper administration of justice.” Hence, the transferring authority of the requesting member state must show that the abovementioned requirement is fulfilled as well as one of the provided criteria is met. The provision provides an exhaustive list of alternative criteria under which a request for transfer may be made, such as the offence took place in the territory of the other Member State, the residence of the suspected person in the other Member State as well as the existence of evidence.

According to Lord Bach such criteria are too broad. The Government is likely to call for stronger reasons for requesting a transfer.

The draft framework decision provides for the suspected person to be informed of the intended transfer however it confers on the transferring authority discretion to decide whether or not is appropriate and in accordance with national law, to inform the offender. Consequently, there is no obligation to inform the suspect of the proposed transfer of proceedings. Article 8 states “If the suspected person presents an opinion on the transfer, the transferring authority shall inform the receiving authority thereof.” However, it is not clear which effect such opinion would have. It seems that this provision is in contradiction with Recital 14 which provides that “Nothing in this Framework Decision should be interpreted as affecting any right of individuals to argue that they should be prosecuted in their own or in another jurisdiction if such a right exists under national law.”

The proposal also sets out the procedure for requesting transfer of proceedings. It provides for the Member States’ competent authorities to consult about the likelihood of transferring proceedings. However, no timeframe is provided for such consultations. The transferring authority would be required to provide information about the proceedings available to the receiving authority.

Under the draft proposal, the transferring authority would be required to use the standard form annexed to the Framework Decision which must be accompanied by the indicated documents such as “copy of the criminal file”, “relevant documents” and “relevant legislation.” However, such terms are not clear. The Minister has pointed out to the ESC that “the UK does not have a criminal file in the same sense as some other Member States.” Moreover, according to Justice “t is equally unclear whether the ‘relevant legislation’ will extend to details of the procedures that were followed by the practical application in the particular case, since rules are not always wholly adhered to.

The reasons for which a transfer may be refused are also set out in the draft framework decision. For instances, a Member State receiving authority may refuse transfer of proceedings if the act does not constitute an offence under its national law. Moreover, the receiving authority would be allowed to refuse the transfer if it considers the reasons given by the transferring authority to justify its request for transfer do not comply with the framework decision criteria. Consequently, if the competence of the receiving Member State is exclusively based on Article 5 it may refuse the transfer if it is not deemed to improve the efficient and proper administration of justice.

Lord Bach has stressed that the scope of the listed reasons is too narrow. According to the Government the proposed criteria for refusal does not ensure Member States adequate control over the cases they accept. The minister has said to the ESC that "Grounds for refusal are important in ensuring this Framework Decision is used appropriately and only in cases where it would improve the efficient and proper administration of justice."

The receiving authority is required to decide “without undue delay” whether a transfer of proceedings will be accepted or not. If it decides to accept the transfer it shall comply with the request taking all necessary measures under its national law. The draft framework decision provides therefore that the proceedings transferred must be governed by the law of the Member State to which the proceedings have been transferred. Hence, that Member State may apply any procedural measures allowed under its national law upon acceptance of a transfer.

Any act of the Member State of the transferring authority for the purpose of proceedings or preparatory inquiries as well as any act interrupting or suspending the period of limitation have the same validity in the Member State of the receiving authority provided that they are compatible with the law of the latter Member State.

Under the draft framework decision, the proceedings in the Member State of the transferring authority related to the facts provided in the request for transfer must be suspended or discontinued upon the receiving authority notification of its decision to accept transfer. Nevertheless, the Member State of the transferring authority may carry out investigations in order to provide judicial assistance to the receiving authority.

The transferring authority would retain the right of prosecution if it decides to withdraw the request before the receiving authority notification of acceptance of the transfer of proceedings. If the receiving authority decides not to proceed with the proceedings related to the facts provided in the request, the transferring authority may also open or reopen proceedings. In the other hand, the transferring authority would preclude any right to instigate proceedings by a decision delivered in Member State of the receiving authority at the end of the proceedings provided that such decision has a precluding effect on further proceedings under its national law.

Private prosecutions are excluded from the scope of the Framework Decision. However, if both member states require a complaint to be lodged to initiate proceedings, the complaint brought in the Member State of the transferring authority must has the same validity as a lawful complaint in the Member State to which the proceedings have been transferred. In the other hand, if proceedings are dependent on a complaint in the Member State of the receiving authority, the formalities for filing the complaint would be governed by the law of that Member State. The provision provides that the time limit shall start running upon acceptance of a request.

The draft framework decision also provides that the sanction applicable to the offence must be determined by the law of the Member State to which the proceedings have been transferred unless its law provides otherwise. However, if the Member State’s competence is not grounded on its national law but on Article 5 the pronounced sanction must not be more severe than that provided for in the law of the other Member State. In this case, the Member State to which the proceedings have been transferred exercises a “subsidiary jurisdiction” consequently, under the draft framework decision, it shall not impose a more severe sanction than that provided for in the law of the Member State which made the request for transfer.

The transferring authority would be obliged to provide a translation of the form used to transfer proceedings as well as the relevant parts of the criminal file into the official language of the receiving Member State. However, it is not clear who will bear the costs of the translation.

The proposal has been submitted to the European Parliament for consultation. Unanimity is required in the Council. The Presidency is planning to reach political agreement on the proposal at the Justice and Home Affairs Council in November. It remains to be seen what will come out from the negotiations.

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ABOUT BILL CASH MP

Bill Cash has been the Conservative Member of Parliament for Stone since 1997 and an MP since 1984.

He is currently the Chair of the European Scrutiny Committee and the founder member of the European Foundation...

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