dr T Tomasz sz Ostropolsk lski Head of Unit, European ean - - PowerPoint PPT Presentation

dr T Tomasz sz Ostropolsk lski Head of Unit, European ean Crimin inal l Law Ministry of Justic ice, , Poland BRUXELLES, , 12 J JUNE NE 2013

 Territoriality  Personality

• - active personality  (ex-)prohibition of

extradition of own nationals

• - passive personality

 Protective  Universality  + Residence

 Grounds of jurisdiction may overlap

• 1. Need for effective fight against transnational

crime  prevent jurisdiction gaps

• 2. Treaty crimes (broad jurisdiction +aut

dedere aut iudicare)

• 3. EU substantive criminal law instruments -

even broader grounds of jurisdiction

• 4. Factual reason – free movement of persons

 No exclusive jurisdiction in criminal law  Civil law – choice of forum, choice of law

(Brussels I, Brussels II, Brussels II bis etc.)

 Criminal law – lex criminalis, eius iurisdictio

(forum=>applicable law, except double criminality,

BUT – art.4.1. MLA 2000 (formalities and procedures indicated by requesting state apply)

• 1. Economics of proceedings (effectiveness,
• ptimal use of time and means)
• 2. Risk to infringe ne bis in idem principle
• 3. Interests of participants of proceedings (e.g.

victims)

 Only 25 ratifications (12 EU states)

Why:

 Divergent statutes of limitations  Double criminality  Prohibition to surrender own nationals

(outside EU) Alt lterna nativ tives: es:

 Bilateral agreements  1959 MLA Convention in conjunction with

2000 MLA Convention

 Principle of reciprocity

 19

1972 72 Europe

• pean

an Conve nvention ntion on the Tr Transfer fer of Proce ceedings dings in Crimina inal l Matter ters s a) Obligation to consider whether it can waive, suspend or transfer proceedings when it becomes aware of any proceedings pending in another state party b) States concerned shall endeavour as far as possible to determine which single state shall continue to conduct proceedings c) Evaluate each of the circumstances in which the Convention provides for a possible request to transfer proceedings

 Proposal for a Framework Decision on

transfer of criminal proceedings (initiative of 15 MS during Swedish PRES 2009)

 Planned to replace 1972 Convention between

EU Member States  no continuation so far

• 1. 2003 Greek initiative for a framework

decision (ne bis in idem+conflicts of jurisdiction)

• 2. Sectorial approach (obligation to cooperate

and, if possible concentrate proceedings in one state – FD on terrorism, cybercrime, organised crime, counterfeiting of euro)  ineffective

• 3. 2005 Commission Green Paper on conflicts
• f jurisdiction and ne bis in idem

 Territoriality principle – poss. to refuse a

warrant if offence commited on own territory  indirect effect for concentration of proceedings

 Pending case (lis pendens) as a ground for

refusal

 Concurring requests  „Division” of jurisdiction – national returned to

serve custodial sentence (art. 4.5 and 5.3. EAW)

 Other instruments of mutual recognition

„division” of jurisdiction on different stages of proceedings: supervision order, criminal penalties, confiscation, probation, deprivation

• f liberty

 2003 Recommendations (criteria of allocation

• f jurisdiction)

 One of the key tasks in Eurojust Decision

(coordinate, accept that one of MS may be in a better postition to undertake investigation

• r perform specific tasks) confirmed in FD

2009/948

 European Public Prosecutor’s Office (?)

(competent to take binding decisions on allocation of jurisdiction ?)



2009 Initiative for a framework decision (5 MS, PRES CZ)



Ambitious, far-fetched project



Watered down in negotiations

• Only ne bis in idem cases
• No established criteria of allocation of

jurisdiction

• 1. Obligation to contact

(reasonable grounds to believe that parallel proceedings are being conducted in another Member State)

• 2. Obligation to reply

(confirm or deny the existence of such proceedings within reasonable deadline) +minimum info to be provided in request and reply

• 3. Obligation to enter into direct consultations

(reach consensus to avoid adverse consequences of parallel proceedings, possibly concentrate them in one MS)

• 4. Inform about the outcome of proceedings

 Implementation deadline 15 June

2012! So far only 5 MS have implemented: (Cyprus, Finland, Germany, Netherlands, Poland)

FD 2009/948 D DOES NO S NOT RE REGU GULATE TRANSF SFER OF PROCEEDINGS GS! ! APPLICAB ABLE INST STRUM UMENTS S ST STILL IN IN F FORCE

 Art. 54 Schengen Convention

„A person whose trial has been final

ally y disposed

• sed of

in one contracting party may not be prosecuted in another contracting party for the same act cts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing contracting party.”

 applies to proceedings by which a public prosecutor

discontinues, without the involvement of the court, a prosecution, once the accused has fulfilled certain obligations and paid a certain sum of money (C-187/01, C-385/01 Gozutok and Brugge)

 same acts: identity of the material acts, understood as the

existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them

• r the legal interest protected (C-436/04 Esbroeck; C-

288/05 Kretzinger)

 covers also suspended custodial sentence (C-288/05

Kretzinger);

 applies where the sentence could never, on account of

specific features of procedure have been directly enforced (C- 297/07 Bourquain)

 Applies where the accused is acquitted finally for lack of

evidence (C-150/05 van Straaten)

 the accused is acquitted finally because prosecution of the

• ffence is time-barred (C-467/04 Gasparini)

 the suspension decision does not, under the national law of

that State, definitively bar further prosecution and therefore does not preclude new criminal proceedings, in respect of the same acts, in that State (C-491/07 Turansky)

 it is for that national court to assess whether the degree of

identity and connection between all the facts to be compared is such that it is possible, in the light of the said relevant abovementioned criterion, to find that they are ‘the same acts’ (c-367/05 Kraaijenbrik)

 C-469/03 Miraglia

Does s NOT appl ply: y: after the Public Prosecutor has decided not to pursue the prosecution on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without any determination whatsoever as to the merits of the case

• 1. No comprehensive instrument on issues of

concurrent jurisdiction and its consequences

• 2. Ambitious plans failed
• 3. Complex system of sectorial instruments
• 4. Indirect effects of mutual recognition ->

ground for refusal + „division” of jurisdiction

• 5. Wait and see for effects of FD 2009/948

(consultation and information) – implement!

• 6. Future? – maybe new Eurojust framework,

European Public Prosecutor’s Office, EU instrument on transfer of proceedings?