Analysis
21 May 2024

European judicial cooperation & transfer of criminal proceedings between Member States

On 5 April 2023, the European Commission adopted a proposal for a regulation on the transfer of criminal proceedings between EU Member States. The aim of this regulation is to contribute to improving the administration of criminal justice in the European Union, while respecting the individual rights of suspected or accused persons. Almost a year after the publication of this proposal, negotiators from the Council and the European Parliament have just announced on 6 March 2024 that they have reached an agreement on the text.

 

The European Union is facing an increase in cross-border crime. The European Commission considers that the European Union’s criminal justice system is “increasingly confronted with situations where several Member States have jurisdiction to prosecute the same case”.[1] This is particularly the case for offences committed by organized gangs, such as drug trafficking, environmental crime and money laundering.[2]

When it comes to cross-border crime, the main problem is that several Member States may be competent to investigate and prosecute the same acts committed by the same offenders. The existence of identical parallel proceedings between several Member States hampers the coordination and effectiveness of criminal prosecutions at European level. Moreover, these parallel proceedings are likely to lead to a “multiplication of restrictions on the rights and interests” of defendants, victims and witnesses. It therefore seems necessary that, where possible, criminal proceedings should be conducted by the Member State where most of the offence was committed.[3]

The Treaty on the Functioning of the European Union (“TFEU”) establishes the competence of the European Union to implement measures to facilitate cooperation between judicial or equivalent authorities of the Member States, in criminal proceedings, in order to prevent and resolve conflicts of jurisdiction between Member States.[4]

In response to this increase in cross-border crime, the Commission has proposed the adoption of a new regulation on the transfer of criminal proceedings between Member States of the European Union. The aim of this regulation is to create a set of common rules to facilitate the transfer of criminal proceedings between Member States and the pursuit of investigations and prosecutions. According to the text, these rules would contribute to the proper administration of justice and the efficiency of criminal justice in Member States.

If adopted by the European Parliament and the Council of the European Union,[5] the regulation would be legally binding and directly applicable in all Member States of the European Union.[6] Almost a year after its publication, negotiators from the Belgian Presidency of the Council and the European Parliament have announced that they have reached a provisional agreement on the proposed regulation.[7]

Until then, existing measures within the European Union did not regulate this form of cooperation, although an agreement on the transfer of law enforcement proceedings was signed in 1990. However, this agreement never entered into force due to a lack of ratification.[8]

The proposed regulation states that it can only be applied once a person has been identified as a suspect.[9]

The regulation sets out the various criteria to be met by the requesting and requested States when considering and examining a request for the transfer of criminal proceedings (I). It also lays down several rights with regard to the suspected person (II). Finally, it regulates the effects of the transfer of criminal proceedings between the requesting and requested States (III).

 

I. Certain criteria must be met by both the requesting and the requested States when requesting the transfer of criminal proceedings within the European Union

 

First, the regulation defines the requesting State as the Member State in which a request for the transfer of criminal proceedings is made, whereas the requested State is the Member State to which a request for the transfer of criminal proceedings is transmitted for the purpose of resuming those proceedings.[10]

Requests for the transfer of criminal proceedings may only be issued when the requesting authority (i.e., a judge, court or public prosecutor competent in the case in question or any competent authority designated as such by the requesting State) is in a position to do so)[11] considers that the objective of the efficient and correct administration of justice would be better served by conducting the criminal proceedings in another Member State. [12]

In order to determine the relevance of transferring criminal proceedings, the proposed regulation provides a list of criteria. These criteria include whether the offence was committed in its entirety on the territory of the requested State, or whether most of its effects or damage occurred on the territory of that State.[13]

Similarly, if the suspected or accused person is a national or resident of the requested State or is in that State and the latter refuses to surrender him or her to the requesting State, the regulations authorize the requesting State to formulate a request for the transfer of criminal proceedings.[14]

It may also be mentioned that the fact that most of the evidence needed to conduct the investigation is available in the requested State enables the requesting State to formulate a request for the transfer of criminal proceedings.[15]

The regulation also allows suspected or accused persons, victims and lawyers acting on their behalf, to make a request to the competent authorities of the requesting or requested State to initiate a procedure for the transfer of criminal proceedings. However, the regulation does not impose an obligation on the requesting State to transfer criminal proceedings to the requested State or to formulate a request to that effect.[16]

The requesting authority wishing to make a request for the transfer of criminal proceedings must complete a certificate annexed to the regulations. This request must be reasoned and contain various items of information such as (i) a description of the criminal offence which is the subject of the criminal proceedings and the applicable provisions of the criminal law of the requesting State, (ii) the reasons why the transfer is necessary and appropriate, (iii) the necessary available information on the suspect or the person being prosecuted and on the victim.[17]

The certificate and any other written information accompanying the request for transfer of criminal proceedings shall be translated into one of the official languages of the requested State or into any other language accepted by the requested State.[18]

On receipt of the certificate, the requested authority must give a reasoned decision on whether to accept the transfer of the criminal proceedings within a maximum period of sixty days. It may request additional information from the requesting authority if it considers that the information previously provided is not sufficient to enable it to accept or refuse the transfer.[19]

The regulation provides for situations in which the requested authority may refuse to transfer criminal proceedings. These include situations where, under the domestic law of the requested State, criminal proceedings may not be initiated against the suspected or accused person for the facts giving rise to the request for transfer of criminal proceedings because (i) the conduct which is the subject of the request does not constitute a criminal offence under the law of the requested State, (ii) the resumption of criminal proceedings is likely to be contrary to the ne bis in idem principle, (iii) the suspected or accused person cannot be held criminally liable for the criminal offence because of his or her age.[20]

The requested authority shall also have the right to refuse, in whole or in part, the transfer of criminal proceedings if (i) the law of the requested State provides for an immunity or privilege which makes it impossible to take any action, (ii) it considers that the transfer of proceedings is not in the interests of the efficient or proper administration of justice, (iii) the criminal offence was not committed in whole or in part in the territory of the requested State, or its effects or a substantial part of the damage resulting therefrom did not occur in its territory, and the suspected or accused person is not a national or resident of that State.[21]

In case of refusal, the requested authority shall inform the requesting authority of the reasons for such refusal. The suspected or accused person and the victim shall also be informed of the refusal.[22]

If the requested authority accepts the transfer of the criminal proceedings, the requesting authority shall transmit to it without delay with the original or a certified copy of the case file, accompanied by a translation into an official language of the requested State or any other language accepted by that State.[23]

 

II. The suspected or accused persons shall have the right to be informed of a request for the transfer of criminal proceedings concerning him or her and to make comments

 

The regulation also provides that the suspected or accused person must be informed, in accordance with the applicable domestic law, of the intention to transfer the proceedings. This information must be given in a language which he or she understands. He shall also be given the opportunity to make oral or written comments on the matter. This opinion will be considered by the requesting authority when deciding whether to transfer the procedure. This right is only effective if the suspected or accused person is located.[24] This information will also be sent to the requested authority at the same time as the request for transfer of criminal proceedings.[25]

The suspected or accused person must also be informed without delay, as soon as he or she can be located, of “the issuing of the request for transfer of criminal proceedings and the subsequent acceptance or refusal of the transfer by the requested authority”.[26] If the requested authority accepts the request for transfer of criminal proceedings, the suspected or accused person must be informed of his or her right to a judicial remedy in the requested State, and of the time limits within which such remedy must be sought.[27]

 

III. With certain exceptions, the transfer of criminal proceedings to the requested State suspends or terminates the proceedings in the requesting State

 

The regulation provides that criminal proceedings in the requesting State must be suspended at the latest on receipt of the notification that of the requested authority’s has accepted the transfer of such proceedings. An exception is made for the lodging of an appeal with suspensive effect. In such cases, the criminal proceedings in the requesting State will be suspended or terminated as soon as a final decision on the appeal has been taken.[28]

Acceptance of the transfer of criminal proceedings by the requesting authority then authorizes it to undertake or maintain investigative and procedural measures aimed at (i) preventing the suspect or accused person from absconding, (ii) enforcing a decision based on Framework Decision 2002/584/JHA or another mutual recognition instrument or a request for mutual legal assistance.[29]

After transmission, criminal proceedings shall be governed by the domestic law of the requested State. However, all acts performed for the purposes of the criminal proceedings or investigation and carried out by the competent services and authorities of the requesting State shall have the same validity in the requested State as if they had been validly performed by its own authorities.[30] The same shall apply to evidence provided by the requesting authority. Such evidence may not be declared inadmissible simply because it was gathered in another Member State. The regulation provides that such evidence gathered by the requesting State may be validly used in criminal proceedings in the requested State, provided that its admissibility is not contrary to the fundamental principles of the law of the requested State.[31]

Finally, the European Commission will ensure the proper application of the new regulation, by implementing a decentralized IT system to guide, facilitate and ensure the rapid, secure and reliable electronic exchange of communications.[32]

Despite the undeniable effectiveness expected from this new regulation, it has still not entered into force. Although the Council of Europe adopted its position (general approach) on this proposal on 4 December 2023, neither its publication nor the finalization of negotiations on it have been announced.[33]

In this position, the Council considered that the most sensitive issue to be addressed was the question of judicial remedies against the decision of the requested authority to accept a request for transfer of criminal proceedings.[34] The existence of an effective judicial remedy has finally been confirmed.

Finally, the text agreed by the Council and the European Parliament, which has not yet been published, reaffirms the rights of the victim and the suspected person, as well as the right to an effective judicial remedy within a reduced timeframe.[35]

The provisional agreement must now be submitted for approval to the Member States’ representatives in the Council (Coreper) and to the Parliament’s Justice Committee. If approved, and after legal-linguistic finalization, the text will then have to be formally adopted by the two institutions before it can be published in the Official Journal of the EU and enter into force. The regulation will enter into force two years after its adoption.

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