2 Prevention and Settlement of Conflicts
of Jurisdiction in Criminal Proceedings
| (30410)
5208/09
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| Draft Framework Decision on Prevention and Settlement of Conflicts of Jurisdiction in Criminal Proceedings
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| Legal base | Articles 31(1)(c) and 34(2)(b) EU; unanimity, consultation.
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| Deposited in Parliament | 5 February 2009
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| Department | Ministry of Justice
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| Basis of consideration | EM of 18 February 2009
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| Previous Committee Report | None
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| To be discussed in Council | To be adopted at the JHA Council, 4-5 June 2009
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| Committee's assessment | Politically and legally important
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| Committee's decision | Not cleared; further information requested
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Background
2.1 A conflict of jurisdiction arises in criminal cases where
more than one Member State has, and wishes to exercise, jurisdiction
to prosecute conduct which constitutes a criminal offence. Where
criminal jurisdiction is exercised on a territorial basis, such
conflicts are minimised, but it has been a feature of Framework
Decisions that they require rules of jurisdiction to be made on
other than a territorial basis, such as nationality or place of
residence of a victim, with the result that conflicts may become
more frequent. Where there are such conflicts of jurisdiction,
there is also the risk that prosecutions may be commenced in respect
of an offence which has been dealt with elsewhere, thus offending
established rules against double jeopardy, or ne bis in idem.
2.2 The principle of ne bis in idem is incorporated
into EU law through Articles 54-58 of the Convention Implementing
the Schengen Agreement. It does not, however, prevent conflicts
of jurisdiction where parallel prosecutions are ongoing in two
or more Member States; ne bis in idem only comes into play
to prevent a second prosecution in one Member State if a prosecution
on the same or a similar set of facts has been concluded in another
Member State.
2.3 To address this concern, the Commission published
a Green Paper On Conflicts of Jurisdiction and the Principle of
ne bis in idem in Criminal Proceedings in December 2005.
2.4 The Green Paper recommended the creation of a
mechanism for allocating criminal jurisdiction, so that all prosecutions
could be concentrated in one territorial jurisdiction. Such a
system would require exchange of information between prosecuting
authorities and the discretion to desist from instituting a prosecution
(or withdraw one already under way) on the sole ground that the
same case is being prosecuted in another Member State. The Green
Paper recognised that this latter feature may pose a problem for
those Member States which have no discretion in relation to the
decision to prosecute.
2.5 A three-stage procedure for the allocation of
criminal jurisdiction was envisaged. First, the Commission proposed
that a rule be adopted at EU level whereby, in any case with significant
links to another Member State, a national prosecuting authority
would be obliged to inform the prosecuting authority in the other
Member States of its intention to prosecute. The other Member
State would then be given a deadline within which to express interest
in commencing a prosecution. Following the elapse of the deadline
with no expressions of interest the first Member State would be
free (apart from in exceptional cases) to continue with the prosecution.
Where two or more Member States had an interest in commencing
a prosecution, a second stage would involve discussions between
the authorities concerned leading to one Member State pursuing
the proceedings and others desisting from instituting proceedings
or bringing them to a close. The third suggested stage addressed
the case where the authorities concerned could not reach agreement.
Here, the Green Paper suggested a "structured dialogue"
with the involvement of a body at EU level, such as Eurojust,
acting as mediator. The Green Paper also suggested a further possible
stage of empowering a body at EU level (such as the European Court
of Justice) to decide on the most appropriate jurisdiction, but
acknowledged that this additional step would be very difficult
to realise within the Treaty framework.
2.6 The Commission recommended that consultation
between Member States over jurisdiction should be conducted in
the absence of the defendant. It acknowledged, however, that the
defendant would have to be informed of the main reasons for a
decision on jurisdiction at the latest at the time an indictment
is presented to a court. This decision could then be open to review
by the national courts on the basis of national legal doctrine
such as abuse of process, although the question of interpretation
of EU-wide rules on the procedural mechanism and criteria for
allocation of jurisdiction could only be referred to the European
Court of Justice under Article 35 EU.
Previous Consideration
2.7 We considered the Green Paper on 22 February
2006.
2.8 We concluded as follows:
- The need for a formal mechanism
for allocating jurisdiction was far from demonstrated in the Green
Paper: there was no evidence that such a mechanism brought any
advantage, which was not already secured by voluntary cooperation
through Eurojust.
- We viewed with particular concern the suggestion
that the European Court of Justice might be empowered to make
a binding ruling determining which Member State should be allowed
to prosecute (thereby affecting the discretion vested in national
prosecution authorities and, in the UK, undermining the accountability
of the Law Officers).
- The Green Paper had not fully considered the
implications for defendants of delays while conflicts of jurisdiction
were resolved. These would be aggravated by the lengthy delays
which would necessarily arise from preliminary references to the
European Court of Justice; such a system would also be likely
to give rise to challenge under the ECHR, notably under Article
6.
2.9 Our Conclusions were echoed by the formal consultation
response of the Government to the Green Paper, in which the UK
concluded that the current mechanisms for managing conflicts of
jurisdiction, and in particular the role played by Eurojust, had
proved sufficient; that the response had registered concern among
relevant authorities that the introduction of formal procedures
to inform, consult and participate in a possible binding dispute
resolution mechanism could lengthen proceedings, which could have
ECHR implications; and that such procedures would remove the flexibility
which was needed to accommodate the differences in Member States'
legal systems.
2.10 Given that a proposal in this field has been
resurrected, it is worth noting in more detail two of the comments
in the UK's response to the Green Paper:
- In the UK's experience, "in
the rare events where a positive conflict of jurisdiction
arises, the mechanisms in place operate satisfactorily, and that
jurisdiction is and can be resolved by discussion. Of the very
few cases referred to Eurojust, negotiation has resulted in
acceptable solutions for the states involved." (Page 1; emphasis
added.)
- "Early consultation and face-to-face discussion
with interested parties to resolve "overlapping jurisdiction"
(there is not always a conflict) should be encouraged. A binding
duty should not be proposed unless existing arrangements based
on co-operation are failing. No evidence is shown of such failure."
(Page 3; emphasis added.)
2.11 No further action has been taken on the Commission's
Green Paper until now.
The Draft Framework Decision
2.12 A proposal for a Framework Decision addressing
the risk of parallel prosecutions was made on the initiative of
the Czech Republic, Poland, the Slovak Republic and Sweden. The
Government's Explanatory Memorandum states that this proposal
was inspired in part by the Commission's Green Paper. The intention
of the Presidency is that the Framework Decision should be adopted
in the JHA Council on 4-5 June 2009.
2.13 The recitals affirm that the Framework Decision
should not override domestic arrangements (where, for example,
the Member State has an obligation to prosecute). Articles 1-4
establish the general principles of the proposal. Article 1 requires
a Member State to notify another when it becomes aware of a case
that presents "a significant link" with that State and
"it is possible that" parallel criminal proceedings
are taking place in that State. By virtue of Article 3 each Member
State is required to designate a single authority to act as a
notifying and reporting authority.
2.14 Articles 5-11 deal with the detailed mechanism
of notification. Article 5 would introduce a formal and mandatory
notification procedure, i.e. an obligation on Member States to
notify another Member State as soon as practicable following the
discovery of facts which demonstrate a significant link to that
Member State. There is a threshold for the obligation to notify
of a custodial sentence of more than one year, but which might
not be applicable in all cases. A link becomes significant "where
the conduct or its substantial part which gives rise to the criminal
offence took place in the territory of another Member State".
The decision as to whether a link is "significant" shall
be taken on a case by case basis with reference to the common
criteria listed in Article 15. The written record of the notification
set out in Article 7 replicates procedures already contained in
other mutual recognition instruments. Articles 8-11 set out the
detail of the notification procedure and list the mandatory elements
to be contained in the notification form. Article 10 requires
a national authority to respond to a notification within a maximum
of 30 days of receipt. If a responding authority fails to comply,
the notifying authority may take "any measures it considers
appropriate in order to bring the matter to the attention of the
responding State", including notification to Eurojust.
2.15 Articles 12-13 cover the "direct consultations"
mechanism, which applies once the relevant authorities have contacted
each other via the notification procedure. This chapter is closely
connected to the subsequent chapter since the aim of the direct
consultations is to agree and determine the "best placed
jurisdiction".
2.16 Articles 14-17 concern the determination of
the best placed jurisdiction. Article 15 sets out a non-exhaustive
list of criteria that must be considered by Member States in making
their decision. Paragraph 1 contains a general presumption in
favour of conducting proceedings in the jurisdiction of the Member
State where most of the criminality has occurred. In the alternative,
paragraph 2 lists significant factors which may favour a different
jurisdiction, including nationality or residence of the defendant,
the interests of the victims, location of evidence, protection
of vulnerable witnesses and residence of key witnesses, stage
of proceedings reached and "economy" of proceedings.
Article 16 permits a national authority at any time to refer the
determination of the best placed jurisdiction to Eurojust; if
after 10 months of the entry into direct consultations no agreement
has been reached, the case shall be referred to Eurojust.
The Government's view
2.17 In his Explanatory Memorandum of 18 February
2009 submitted on behalf of the Office for Criminal Justice Reform,
Parliamentary Under-Secretary of State at the Ministry of Justice
(Lord Bach) makes the following comments on the Framework Decision.
2.18 With reference to Article 1 the Minister comments
that its scope is too broad, since it could be interpreted as
requiring a formal notification in all cases presenting a cross-border
dimension. However, the Minister adds that this may not be the
intention of the drafters and that the Government will work with
partners to refine the wording. The Minister comments that Article
3 appears to require that each Member State has to designate a
single authority to act as a notifying and a responding authority,
which the Government considers overly burdensome.
2.19 Article 5 appears to the Minister to be unduly
bureaucratic if its effect were to set up too prescriptive a mechanism
of notification. However, the minister also points out that the
obligation to notify "as soon as practicable" does not
appear taxing; relying on the concept of 'practicable' would preserve
prosecutorial discretion. The Minister explains that the trigger
for notification, i.e. the "significant link" contained
in Article 6, is a subjective criterion, which would allow flexibility
to Member States in deciding whether a notification is required.
The Minister explains that the Government will reflect further
on whether subjective or objective criteria would be more appropriate.
The mandatory elements in the notification form (Articles 8-11)
are described by the Minister as a "very detailed mechanism",
which could be "unduly bureaucratic and prescriptive"
and the Minister indicates that the Government will therefore
"express its preference for a more flexible, direct communication
mechanism of general information exchange".
2.20 In relation to chapter 3, direct consultations,
the Minister's concerns lie mainly with their relationship to
Eurojust and the possibility of overlap between this proposal
and the Eurojust Decision. The Minister also states that the Government
will wish to encourage direct communication, without any need
for recourse to a central authority.
2.21 The Minister further explains that the criteria
for determination of the best placed jurisdiction under this Framework
Decision might interfere with the guidelines applied by Eurojust
when making a recommendation in a dispute over jurisdiction;[6]
that formal procedures to inform, consult and participate in a
resolution mechanism might carry the risk of lengthening proceedings
or making them more bureaucratic; and that subsequent delays have
implications for fairness to the accused and may render the proceedings
liable to ECHR challenges (as well as preliminary references to
the European Court of Justice). The Minister states that the Government
will work with partners "as far as possible to minimise those
possibilities, without compromising the current efficiency of
existing procedures".
2.22 Finally, the Minister confirms that an inflexible
mechanism requiring notification - in all cases would impose an
additional burden on prosecutors as well as other authorities
with significant financial implications.
Further Developments
2.23 The proposal was discussed in the JHA Council
on 26-27 February. Lord Bach reported to the House[7]
that "[m]inisters reached a broad consensus on presidency
conclusions to steer negotiations on the proposed framework decision
[…] in particular focusing the instrument on preventing situations
where the same person is subject to parallel proceedings in different
member states, and establishing flexible mechanisms for communication".
A revised version of the proposal has been drafted which is reported
to limit the scope and obligations of the draft Framework Decision.
Conclusion
2.24 We thank the Minister for his thorough Explanatory
Memorandum.
2.25 The proposal for a Framework Decision on
Prevention and Settlement of Conflicts of Jurisdiction in Criminal
Proceedings is problematic, and we do not at this stage share
the Government's acceptance that such legislation is needed.
2.26 Principal among our concerns is the absence
within the EM of any evidence justifying the need for this Framework
Decision. Without this, we are of the view that an unnecessary
additional layer of bureaucracy and source of delay will be added
to the many prosecutions of cases in the national jurisdiction
that have a cross-border element, cases which are currently resolved
satisfactorily through informal contact between investigators
and prosecutors (often generated as a result of carrying out mutual
legal assistance requests). We are also concerned to know why
Eurojust is not well placed to deal with conflicts of jurisdiction
which cannot be resolved through informal channels.
2.27 We therefore ask the Minister to deposit
to the Committee the most recent revision of the draft Framework
Decision with an Explanatory Memorandum explaining the amendments.
We would be grateful if the EM could also address the following:
2.28 What is the evidence of parallel prosecutions
leading to injustices in EU Member States over the last two years
that supersedes the UK's response in 2006 to the Commission Green
Paper that these were 'rare events' amounting to 'very few cases'
?
2.29 Similarly, what is the evidence that would
cast doubt on the conclusion in the UK's 2006 response that the
rare cases in which a positive conflict of jurisdiction arose
could be satisfactorily resolved by 'face-to-face discussion',
or exceptionally by negotiations through Eurojust?
2.30 What effect would the proposal have on national
discretion whether or not to prosecute?
2.31 The absence of provisions in the proposal
concerning the right of a defendant to be informed of a determination
of jurisdiction and judicial oversight of such determinations.
2.32 How the revised proposal answers the concerns
set out in the Government's EM, namely: that it would be overly
burdensome for each State to have to designate a single authority;
that the mandatory elements of notification are too prescriptive,
the Government preferring a more flexible direct communication
mechanism without any recourse to a central authority; that the
proposal overlaps with the mandate of Eurojust and that the criteria
for determination of jurisdiction could interfere with the criteria
applied by Eurojust; and that the proposal risks lengthening and
thereby affecting the fairness of criminal proceedings, particularly
for a defendant in custody, including through an increased incidence
of challenges to the courts in Strasbourg and Luxembourg.
2.33 We shall hold the document under scrutiny
pending the Minister's reply.
6 Annex IV to the annual report of Eurojust 2004 sets
out a list of criteria to help authorities decide which jurisdiction
is best placed to prosecute. Back
7
HC Deb, House of Lords, 5
March 2009, col. WS66 Back
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