The expansion of cross-border crime in the European Union has led to unified action on the transfer of criminal proceedings between Member States. The European Commission, on 5 April 2023, presented proposal for a regulation no. COM/2023/185 on the allocation of justice within the EU.
The proposal stems from the need to ensure a uniform legal framework in a scenario in which, precisely because of the plurality of jurisdictions often coexisting between the various Member States, various problems arise in terms of the coordination and effectiveness of the prosecution, as well as possible violations of the rights and interests of individuals arising precisely from the duplication of procedural activities[1].
Transnational crime
Statistically, three categories of offences are distinguished, in which the characteristic of “transnationality” clearly emerges.
The first is certainly the crimes committed by organised crime groups. Criminal groups take their place in all EU countries and often operate across borders. 70% of these are active in at least three Member States at the same time [2] and the main criminal activities they carry out can be traced back to drug trafficking, migrant trafficking, money laundering and cybercrime.
The second, however, is that of common crimes with cross-border aspects: a typical example of this category are cases of online fraud or the dissemination of pornographic material, in which the offender acts causing the detrimental effects of the conduct in the territory of another State.
The last, finally, concerns small crimes committed between neighbouring countries: many European citizens often move for work or family reasons and this means that there are cases in which criminal offences are committed on both sides of the border: think of the hypothesis of who, a citizen of State A, damages an asset in the neighboring State B and then returns to their own country.
The current legal framework
Although the transfer of proceedings is often necessary, existing instruments at European level are fragmented, insufficient and do not properly balance the needs for cross-border judicial cooperation with the rights of individuals.
At present, Member States transfer criminal proceedings between themselves using different legal instruments, without uniform rules throughout the European Union.
The European Convention on the Transfer of Criminal Proceedings of 15 May 1972 certainly comes to the fore. This piece of legislation, which offers a complete and gradual procedure for requesting the transfer of proceedings and a list of criteria which may support them, was in the abstract a suitable and effective instrument, however only 13 states have ratified and applied it [3].
For this very reason, most national legal systems have opted to use an additional regulatory tool: art. 21 of the European Convention on Mutual Assistance in Criminal Matters of April 20, 1959[4].
For the latter form of cooperation, there is a much more simplified discipline, for which there is no obligation or specific procedure to be followed but, at most, a mechanism is identified through which each state can request the prosecution of a suspect who is in another convention country.
Therefore, for these characteristics, this instrument is also inadequate: it lacks a unified regulation of the transfer procedure to coordinate all member states.
In addition to these internationally intervening instruments, some states have bilateral or multilateral agreements that serve as the basis for the transfer of criminal proceedings. An example of this “domestic” instrument is the Nordic Cooperation Agreement between Finland, Norway, Sweden, Iceland and Denmark[5].
It is also necessary to consider additional regulatory institutions that, although they do not directly deal with the subject of transfer of criminal proceedings, are instrumental in ensuring adequate cooperation and harmonization between domestic systems, including in the judicial sphere[6].
These include Framework Decision 2009/948/JHA.[7], which establishes a procedure for the exchange of information and direct consultations between competent authorities in order to reach preventive solutions to regulate the allocation and contributions of investigation and prosecution, limiting the negative effects of parallel proceedings.
On more specific areas, Directive (EU) 2017/541[8] on combating terrorism and Framework Decision 2008/841/JHA.[9] on organized crime have identified criteria for centralizing prosecutions in a single state in cases where several member states are entitled to prosecute the same facts.
On the topic of coordination, the European Union Agency for Judicial Cooperation in Criminal Matters (Eurojust)[10] is in charge of facilitating cooperation in judicial matters, including resolving any jurisdictional issues. Given its role, the latter is considered in today’s proposed Commission regulation – in Art. 16 – as an auxiliary authority in the transfer procedure for member states[11].
Lastly, the institution of the M.A.E.[12] (European Arrest Warrant), within strict limits, allows judicial authorities to obtain the surrender of a person from another country of the Union for the purpose of prosecution or execution of a sentence or custodial security measure.
The new proposal
Thus, the European Commission’s April 5, 2023 proposal fits into this fragmented regulatory framework.
The legal basis for this initiative can be found in Art. 82(1)(b) and (d) TFEU, under which the Union has the competence to establish measures to facilitate cooperation between judicial or counterpart authorities of member states in relation to prosecution and to prevent and resolve conflicts of jurisdiction.
The executive body of the European Union, in doing so, makes a proposal consisting of five separate chapters.
The first chapter-“general provisions”-indicates the objective of the proposal and provides definitions of all stakeholders in the procedure. Articles 3 and 4, in particular, dictate a rule of jurisdiction for specific cases and the cases in which criminal proceedings can be waived, suspended or discontinued in favor of another member state deemed more suitable for prosecution.
Chapter Two-“transfer of criminal proceedings,” on the other hand, details the criteria and procedures for requesting or making a decision on the transfer of criminal proceedings. This part of the proposal, moreover, includes the rights and interests of the defendant in case of transfer.
Chapter Three-“effects of the transfer of criminal proceedings”-identifies the procedural and substantive consequences arising from the completion of the transaction as well as the rules applicable to the transferred criminal proceedings.
On the other hand, Chapter Four-“means of communication”-indicates the means of electronic communication between requesting and requested authorities, as well as with central authorities and “Eurojust,” again with a view to effective Euro-EU cooperation.
The last chapter-“Final Provisions”-concludes the proposal with provisions on statistics, reporting, notifications by member states, coordination between regulation, international agreements and arrangements, and transitional provisions to be applied regarding means of communication before authorities are obliged to use the decentralized information system provided therein.
From the content of the proposal, therefore, it is clear that the Commission has moved on three distinct levels in order to create a common legal framework: the creation of a specific procedure for the transfer of criminal proceedings between member states; the provision of guarantees and safeguards for suspects or defendants; and the provision of a digital channel for cross-border communications between the authorities concerned.
In practice, the procedure thus structured stipulates that the so-called “requested” state, upon the request for transfer from the so-called “requesting” state, has a 60-day deadline to decide whether to accept or reject it. If so, the requested state shall apply the discipline provided by domestic law to the crime of the transferred proceedings.
In observance of Art. 5 of the proposed regulation, the transfer can be made according to specific criteria. Examples include: the citizenship of the suspect/defendant, the pendency of criminal proceedings for the same or other facts, and the locus commissi delicti.
The European Commission’s goal
The Commission’s choice of the instrument of a regulation is certainly not accidental; as is well known, this would ensure common application of the rules throughout the Union and their simultaneous entry into force, as well as prevent divergent interpretations between one member state and another
[13] .
The identification of a common framework for the transfer of proceedings serves to ensure that the member state is in the best position to investigate or prosecute a given crime, thus preventing two possible scenarios.
First, the institution of multiple parallel proceedings for the same facts and against the same person in different jurisdictions, which could result in the violation of the ne bis in idem principle enshrined in Art. 50 of the Charter of Fundamental Rights of the European Union[14].
Second, the lack of effectiveness of prosecution, when the surrender under an E.M.A. of prosecuted individuals is delayed or refused
[15] .
The limits of a long-awaited innovation
In the absence of a unified regulatory framework and because of the different criminal justice systems in each member state, the transfer of criminal proceedings has always been subject to various legal and practical obstacles.
The introduction of specific legislation has indeed been under discussion since the entry into force of the Lisbon Treaty-December 1, 2009-and today’s proposal is among the objectives set out in the EU’s 2021-2025 strategy for combating organized crime, in relation to which the transfer of criminal proceedings assumes great significance, especially with a view to strengthening the fight against cross-border crime.
In fact, so far, the various procedures tried out have been hampered by undue delays and the lack of specific communication arrangements between the authorities involved, resulting in inefficiencies in the allocation of human and financial resources.
Differences in the systems of member states on fundamental institutions concerning criminal procedural law-especially in terms of the rights and guarantees of suspects or defendants-have often prevented advanced forms of cooperation, given the obvious legal uncertainty and the risk of insufficient protection of fundamental rights of individuals.
Approval of the regulation could provide greater legal certainty in the Union while strengthening tools for combating trans-European crime. However, balancing the needs for efficiency in judicial cooperation should never result in a compression of the fundamental procedural rights of the persons concerned. In the face of the detail with which aspects of procedural management in relations between judicial authorities of member states are declined, equal prescriptive punctuality is not found on the individual guarantees front, the proposal containing overly general statements of principle aimed at guaranteeing the “procedural rights” of the accused. Additions and amendments to the proposal will therefore be necessary so that, as has happened in the past, the fundamental freedoms of the individual do not remain abstract petitions, mortified by the punitive claim of states.
Prof. Avv. Roberto De Vita
Avv. Maria Caponnetto
References
[1] On the relationship between conflicts of jurisdiction and transfer of proceedings see. M. Carmona Ruano, Prevention and settlement of conflicts of jurisdiction, in K. Ligeti, Preventing and resolving conflicts of jurisdiction in EU Criminal Law, Oxford University Press 2018, 119-139. M. Kaiafa-Gbandi, Addressing the Problems of Jurisdictional Conflicts, in Ciminal Matters within the EUE, EUCRIMI 2020, no. 3, 209-212.
[2] https://www.consilium.europa.eu/it/policies/eu-fight-against-crime/
[3] V. M. R. Marchetti – E. Selvaggi, The new criminal judicial cooperation, 2019, 149 ff.
[4] G. De Amicis, On the Transfer of Criminal Proceedings, in Dir. pen. proc., 2010, 1246 ff.
[5] https://www.nordefco.org/Files/nordefco-mou.pdf
[6] For a general discussion see. F. Ruggieri, Criminal process and European rules: acts, rights, subjects and decisions, 2018.
[7] In particular, the measure introduces a useful tool to prevent violation of the prohibition of ne bis in idem by providing procedural mechanisms that prevent multiple criminal proceedings before different European national authorities against the same person and in relation to the same fact.
[8] https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=celex%3A32017L0541
[9] https://eur-lex.europa.eu/legal-content/IT/ALL/?uri=CELEX:32008F0841
[10] http://data.europa.eu/eli/dec/2002/187/oj
[11] For a more detailed discussion on the topic, see. G. Barrocu, Investigative cooperation in the European context – From Eurojust to the investigation order, 2017.
[12] http://data.europa.eu/eli/dec_framw/2002/584/oj
[13] Further possible options, such as a recommendation, were discarded as lacking a directly binding nature and, as such, not adequate to provide a concrete and effective solution to the problems encountered on the issue.
[14] http://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:12016P/TXT&from=IT. For an analysis of Art. 50 of the Charter of Fundamental Rights of the European Union v. M. Castellaneta, Sub art. 50, in F. Pocar, M.C. Baruffi, Short Commentary on the Treaties of the European Union, 2014, 1794-1795.
[15] On the topic, see. F. Schorkopf, European Arrest Warrant, in Oxford Public International Law, June 2019; Cf. Court of Justice of the EU, April 5, 2012, C-404/15 and C-659/15 (Aranyosi & Caladararu)
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