8 Transfer of criminal proceedings
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11119/09
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| Draft Council Framework Decision on Transfer of Proceedings in Criminal Matters
Draft Council Framework Decision on Transfer of Proceedings in Criminal Matters — Explanatory Report
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| Legal base | Articles 31(1)(a) and 34(2)(b) TEU; consultation; unanimity
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| Deposited in Parliament | 2 July 2009
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| Department | Justice |
| Basis of consideration | EM of 16 July 2009
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| Previous Committee Report | None
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| To be discussed in Council | July 2009
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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Introduction
8.1 The draft Framework Decision is an initiative of 15 Member
States[20] to establish
a common set of rules within the EU for the transfer of criminal
proceedings between Member States. The Presidency aims to reach
political agreement on it at the JHA Council on 30 November.
Background
8.2 The Council's "Explanatory Report" states that Member
States of the EU are "increasingly confronted" with
situations where two or more Member States have jurisdiction to
investigate "the same or related criminal offences".
Examples include offences which are committed in more than one
Member State, such as people trafficking, or where one Member
State has jurisdiction because the suspect is a national of that
Member State, and another because the offence was committed on
its territory. Where criminal proceedings for the same or related
offences are brought in two different Member States, the Explanatory
Report states "in the light of the general aim of the EU
to create a common area of freedom, security and justice it would
in many situations be more appropriate to concentrate proceedings
to one Member State."
8.3 The Explanatory Report refers to relevant existing
legislation. A Council of Europe Convention on the Transfer of
Proceedings in Criminal Matters was adopted in 1972, but only
13 EU Member States have ratified it. The UK is not one of them.
Since 2000 all EU Member States have been party to the Convention
on Mutual Assistance in Criminal Matters, which supplements the
1959 Council of Europe convention on mutual assistance in criminal
matters in the EU. States rely on this heavily for the purposes
of transferring evidence to assist each other in bringing criminal
proceedings. There is also an agreement on the transfer of criminal
proceedings between EU Member States that was signed in 1990,
before the third pillar of the EU was established. This never
came into force through lack of ratifications. The Explanatory
Report concludes: "There is, however, no common legal framework
on the procedure of transfer of proceedings with, e.g., criteria
for requesting transfer, a procedure following request, reasons
for refusing a request and effects of transfer. In line with the
aim of creating a common European area of freedom, security and
justice, it thus becomes necessary to take action so as to eliminate
the deficits [sic] of the existing legal framework".
Draft Framework Decision
CHAPTER 1 GENERAL PROVISIONS
8.4 Article 1 defines the objectives of the instrument
as being to increase efficiency in criminal proceedings and improve
the proper administration of justice. These will be accomplished
by establishing rules on transfer of criminal proceedings between
authorities of Member States, "taking into account the legitimate
interests of suspects and victims". Article 2 states that
the Framework Decision complies with fundamental rights, and Article
3 defines "offence", "transferring authority"
and "receiving authority". Article 4 gives Member States
flexibility in determining competent authorities for the transfer
of proceedings, and is consistent with similar provisions in other
Framework Decisions.
8.5 Article 5 addresses competence to prosecute when
proceedings are transferred between Member States and is far-reaching:
"(1) 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.
"(2) The competence conferred on a Member
State exclusively by virtue of paragraph 1 may be exercised only
pursuant to a request for transfer of proceedings."
8.6 The Council's Explanatory Report provides the
following rationale for this Article (emphasis added):
- "In order for proceedings
to be transferred, wherever the interests of a proper administration
of justice so require, it is essential to confer competence
on the Member State of the receiving authority in cases where
that Member State would not otherwise have competence.
- "Competence can be conferred by giving a
request for proceedings an automatic effect of making the criminal
law of the Member State of the receiving authority applicable.
- "In order to avoid conflict with the principle
of nulla poena sine lege another method has been chosen,
in conformity with the corresponding provision of the 1972 [Council
of Europe] Convention [on transfer of criminal proceedings]. Article
5(1) thus provides for applicability of the criminal law of each
Member State to any offence to which the criminal law of another
Member State is applicable. This implies that the Member State
in question was already competent at the time the act was committed.
- "The above mentioned extension of competence
should, for obvious reasons, remain limited to what is necessary
for the purposes of the transfer.
- "The competence conferred in accordance
with this provision is subsidiary in application and can be exercised
only if the Member State having original jurisdiction is unable
to exercise it or waives its right to do so.
8.7 Article 6 provides for the Member State having
original jurisdiction to waive or discontinue the proceedings
in favour of a Member State identified as being in a better position
to prosecute. The Explanatory Report states that this Article
is devised for Member States which have legal systems based on
the "principle of legality" of proceedings, i.e. the
obligation to prosecute an offender. Without the provision these
Member States may be bound by their national law to initiate their
own proceedings.
CHAPTER 2 TRANSFER OF PROCEEDINGS
8.8 Article 7 gives a Member State, which is competent
to prosecute an offence, the possibility (rather than obligation)
of requesting another Member State to institute proceedings against
the suspect "if that would improve the efficient and proper
administration of justice", and if at least one of several
criteria is met. The criteria are alternatives, not cumulative,
and the list is exhaustive. They are linked to Article 12 which
sets out the cases in which the receiving authority may refuse
the request. The criteria for transfer are as follows:
- If the offence has been committed
wholly or partly in the territory of the other Member State, or
a substantial part of the damage caused by the offence was sustained
in the territory of the other Member State.
- The suspect is ordinarily resident in the other
Member State.
- Most of the evidence is located in the other
Member State.
- There are ongoing proceedings against the suspected
person in the other Member State; or there are ongoing proceedings
in respect of the same or related facts involving other persons,
in particular in respect of the same criminal organisation, in
the other Member State.
- The suspected person is serving or is to serve
a sentence involving deprivation of liberty in the other Member
State.
- Enforcement of the sentence in the other Member
State is likely to improve the prospects for social rehabilitation
of the person sentenced or serve other benefits.
- The victim is resident in the other Member State
or has another significant interest in having the proceedings
transferred.
8.9 The Explanatory Report states that the criteria
are not listed in order of importance and none has overriding
importance for the aims of the Framework Decision; they are all
intended to achieve the overriding objective, that of a better
administration of justice.
8.10 Article 8 ("informing the suspected person")
concerns the effect of a decision to transfer proceedings on the
suspect. The transferring authority is required "where appropriate
and in accordance with national law" to inform the suspect
and if the suspect "presents an opinion on the transfer"
the transferring authority shall inform the receiving authority
of its contents. The Explanatory Report confirms that the objective
of this Article is to "confirm the individual's right to
defend himself, since the decision could affect the outcome of
the criminal proceedings."
8.11 Article 9 deals with the "rights"
of victims. The competent authorities shall give due consideration
to victims' rights under the national law before a transfer request
is made, in particular to the right to be informed about an intended
transfer.
8.12 Article 10 concerns the procedure for making
a request and indicates which documents must accompany the request.
Paragraph (1) provides the possibility for the competent authorities
to consult before a request is made when it is likely that a transfer
is likely to be refused for one of the reasons set out under Article
12. Paragraph (2) gives flexibility when it comes to the procedure
for consultation. If appropriate, the transferring authority may
use a standard form for providing the information necessary. Paragraph
(4) concerns the actual request for transfer, stipulating that
the request shall be accompanied by the "criminal file or
relevant parts thereof" and the use of the form in cases
where it has not already been used during the consultation procedure.
The Explanatory Report comments that "[u]ltimately, it is
for the receiving authority to judge which information is necessary
in each particular case and, where appropriate, ask the transferring
authority for the additional information needed." A copy
of relevant legislation, or a statement of relevant law, should
also accompany the request. This is because of the double criminality
requirement in Article 11. Paragraph (6) provides that the right
of prosecution will revert to the transferring authority if it
withdraws the request at any time before the receiving authority
has informed it of a decision to accept transfer of proceedings
under Article 13.
8.13 The requirement of double criminality is set
out in Article 11:
"A request for transfer of proceedings can be
complied with only if the act underlying the request for transfer
constitutes an offence under the law of the Member State of the
receiving authority".
8.14 The Explanatory Report states that the principle
of double criminality in abstracto, as opposed to in
concretu, has been chose in conformity with other EU instruments.
"This means that the act underlying the request for transfer
has to fit the definitions of the requirements of an offence in
both Member States." The provision should, however, be read
in conjunction with the grounds for refusal in Article 12.
8.15 The reasons for which a transfer may be refused
are listed in Article 12, and are to some extent consistent with
the grounds for refusal already familiar from other Framework
Decisions. Subparagraph 1(g) entitles the receiving authority
to dispute the factual or legal reasons given by the transferring
authority to justify its request for transfer. This provision
relates to the criteria listed in paragraphs in Article 7. Other
reasons include if the double criminality test in Article 11 is
not met; if taking the proceedings would be contrary to the ne
bis in idem principle; if the suspect is too young to be tried
or benefits from immunity; or if the prosecution is statute-barred
or the offence is covered by a national amnesty. The receiving
authority can also refuse transfer of proceedings in cases where
its competence to prosecute is exclusively based on Article 5
of the Framework Decision if it disputes the assessment of the
overriding requirement in Article 7, that a transfer "would
improve an efficient and proper administration of justice".
Before deciding to refuse transfer on this ground the receiving
authority shall, however, in accordance with paragraph (3), consult
with the transferring authority.
8.16 Article 13 provides that the receiving authority
will determine "without undue delay" whether to accept
the transfer. The Explanatory Report adds that "[n]othing
in the Framework Decision should be interpreted as interfering
with any prosecutorial discretion provided for in national law
and there is no obligation to prosecute in a case that has been
transferred. Article 15 contains information on the possibility
to request assistance by Eurojust or by the European Judicial
Network. However, this provision is without prejudice to the Eurojust
Decision.
CHAPTER 3 EFFECTS OF THE TRANSFER
8.17 Articles 16 and 17 deal with the effects of
a transfer. Article 16(1) stipulates that the proceedings in the
Member State of the transferring authority shall be suspended
or discontinued, at the latest upon notification of the receiving
authority's decision to accept transfer. The Explanatory Report
adds that "this provision aims to prevent parallel proceedings".
The proceedings in the transferring State can be re-instituted
if the receiving authority then decides to discontinue the proceedings.
8.18 Article 17(1) makes it clear that the law of
the Member State to which the proceedings have been transferred
is to be applied once the proceedings have been transferred, which
includes what action is to be taken in a case that has been transferred.
Article 17(2) lays down the rule of the equivalence of steps by
specifying that procedural steps lawfully taken in the Member
State which made the request for transfer have "the same
validity" in the Member State to which the proceedings have
been transferred, provided that they are compatible with the law
of the latter Member State. The same effect is awarded to acts
interrupting or suspending the period of limitation in the transferring
State. Article 17(4) makes clear that a complaint legally filed
in the Member State which made the request for transfer has the
same validity as a lawful complaint in the Member State to which
the proceedings have been transferred, even if the rules differ
between the Member States. "Complaints" refer to authorisation
to bring proceedings. However, private prosecutions are excluded
from the scope of the Framework Decision (see also Article 16(4)).
8.19 Article 17(6) deals with the law applicable
for the purposes of determining the sanction regarding an offence
underlying a request for transfer. The sanction shall be determined
by the law of the Member State to which the proceedings have been
transferred. If, however, the competence is based on transfer
of competence under Article 5, "the sanction pronounced shall
be no more severe than that provided for in the law of the other
Member State."
CHAPTER 4 FINAL PROVISIONS
8.20 Article 19 stipulates the obligation for the
transferring authority to provide a translation of the form and
the relevant parts of the criminal file, which is in conformity
with other Framework Decisions. Article 21 governs the relationship
with the Council of Europe Convention of 1972 (paragraph (1))
and, with regard to existing or future conventions or agreements,
clarifies that the Member States may apply and/or agree upon instruments
which go beyond the goals of the proposal (paragraphs (2) and
(3)). Articles 22 and 23 contain provisions on the implementation
and entry into force of the Framework Decision.
The Minister's Explanatory Memorandum of 16 July
2008
8.21 The Parliamentary Under-Secretary of State at
the Ministry of Justice (Lord Bach) has set out his initial assessment
of the draft Framework Decision in his Explanatory Memorandum
of 16 July.
8.22 For States that have ratified the 1972 Council
of Europe Convention, or adopted formal transfer procedures, the
Minister comments that this Framework Decision will be seen "largely
as a co-ordination exercise, bringing together a number of different
instruments that deal with the same subject area". As the
UK has never ratified the 1972 convention and does not have a
formal mechanism for transferring criminal proceedings to other
Member States, this Framework Decision has wider ramifications.
It would require a change in the way the UK deals with transferring
proceedings and, as currently drafted, would widen the UK's principle
of territorial jurisdiction. The Government has therefore not
co-sponsored this Framework Decision.
CHAPTER 1 GENERAL PROVISIONS
8.23 Although this Chapter deals with general provisions
it touches upon a number of areas that cause the Government concern.
Article 3 contains definitions which, whilst not contentious in
themselves, do not define what is meant by "transfer of proceedings".
The Government believes it is important to understand what is
meant by transferring proceedings as this is central to properly
understanding the scope of the Framework Decision.
8.24 The Minister states that the Government has
strong reservations 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". By contrast, the
Minister comments, most other Member States have much broader
rules on jurisdiction, including jurisdiction generally based
on "active personality" (the nationality of the perpetrator)
or "passive personality" (nationality of the victim).
Article 5 would run contrary to the UK's normal approach to jurisdiction.
CHAPTER 2 TRANSFER OF PROCEEDINGS
8.25 Article 7 articulates a two-stage process for
requesting transfer: the requesting state must demonstrate i)
that transferring the proceedings would improve an efficient and
proper administration of justice, and ii) that one of the specified
criteria is met. The Minister comments that, as currently drafted,
the criteria are too wide: the Government believes that it is
important that strong reasons for requesting a transfer are demonstrated.
8.26 Article 8 is about informing the suspect of
transfer. Current drafting provides discretion for the transferring
authority to determine the appropriateness of informing the defendant
and whether it would be in accordance with national law. The Government
welcomes this provision and the pragmatic approach it takes. Article
9 states that the rights of the victim shall be given due consideration
and those rights under national law will be fully respected. The
Government agrees that any rights granted to the victim should
accord with national law.
8.27 Article 10 sets out the procedure to be followed
when requesting a transfer of proceedings, including a standard
form for completion. The Government places importance on
the role of consultation between Member States and whilst the
Government would not want an onerous and prescriptive administrative
burden created, it is important that there is early and appropriate
communication before a request is made. This should be given greater
emphasis in the Framework Decision.
8.28 Article 12 sets out the grounds on which a Member
State can refuse a transfer. The Minister comments that the specific
grounds are not contentious although narrow in scope. The Government
believes that the grounds for refusal should give a Member State
adequate control over the cases it accepts and that the current
criteria would need to be adapted to ensure this. "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."
CHAPTER 3 EFFECTS OF THE TRANSFER
8.29 This chapter deals with the practicalities of
ceasing proceedings in the State that has successfully transferred
proceedings and starting proceedings in the State that has accepted
transfer. Article 17 (1) is important as it explicitly says that
transferred proceedings shall be governed by the Member State
to which transfer has been effected and 17(3) that upon acceptance
a Member State may apply any procedural measures permitted under
its national law. The Government supports this Article as it is
important that domestic criteria can be applied upon acceptance
of a transfer — a receiving State must have total freedom
to act within its own law.
CHAPTER 4 FINAL PROVISIONS
8.30 This chapter deals with a number of issues such
as translation and costs. Article 19 asks for the form that will
be used to transfer proceedings and relevant parts of the criminal
file to be translated into the language of the receiving Member
State. The Minister comments that there is difficulty with the
term criminal file (the UK does not have a criminal file in the
same sense as some other Member States) and clarification is needed
as to where the costs of translation fall.
Conclusion
8.31 We limit our comments to initial concerns
that have not been raised by the Minister in his Explanatory Memorandum
of 16 July.
NEED FOR LEGISLATION
8.32 The introduction to the Council's Explanatory
Report talks of EU Member States being "increasingly confronted
[our emphasis] with situations where two or more Member States
have jurisdiction to investigate and bring to trial the same or
related criminal offences". We would be grateful to be provided
with the details of the assessment undertaken by Member States
that demonstrates that the status quo is unsatisfactory and that
EU legislation on the transfer of criminal proceedings is therefore
necessary.
OVERLAP WITH FRAMEWORK DECISION ON CONFLICTS OF JURISDICTION
IN CRIMINAL PROCEEDINGS
8.33 We would be grateful if the Minister could
clarify precisely the distinction between this Framework Decision
and the recently adopted Framework Decision on the conflicts of
jurisdiction in criminal proceedings, given that this Framework
Decision also legislates for transfer of proceedings in cases
of double jeopardy, or ne bis in idem;[21]
and also why it was thought that two Framework Decisions were
necessary — from our perspective it appears as if both pieces
of legislation were conceived almost in isolation.
8.34 We would also be grateful for the Minister's
opinion on how appropriate he considers it to have different consultation
procedures between Member States in these two Framework Decisions.
In our view, the use of EU third pillar cooperation procedures
by law enforcement and prosecution authorities would be better
achieved by keeping the rules simple; not by creating different
rules for consultation in closely overlapping fields of activity.
TRANSFER OF COMPETENCE TO PROSECUTE
8.35 Article 5 is both novel and far-reaching:
it gives national courts competence to try a criminal offence
that is not prescribed by UK law — or, put another way,
that the Government has not proposed nor Parliament agreed should
be a crime. Instead, jurisdiction comes from the EU Member State
that is transferring the proceedings.[22]
The Council's Explanatory Report states that this transfer of
competence is taken from the 1972 Council of Europe Convention
on the transfer of Criminal Proceedings. We note, however, that
the UK did not ratify this convention. We would be grateful for
an explanation why.
8.36 The Minister's comment in his Explanatory
Memorandum relates only to the unwelcome extension of jurisdiction
caused by Article 5. We note that he is assessing the legislative
impact of the proposal and ask him to say whether in his view
the transfer of competence envisaged by Article 5 is consistent
with, firstly, principles of national criminal law and, secondly,
with the requirement for double criminality in Article 11 of the
draft Framework Decision.
8.37 Beyond questions of legal principle, we would
be grateful to the Minister for an explanation of how, in practice,
he envisages a prosecutor would apply national rules on drafting
an indictment to an offence derived from a foreign jurisdiction;
how the elements of the offence would be defined; and what status
the case law of that foreign jurisdiction (most likely to be civil
rather than common law) concerning the offence would have. And
similarly, we would be grateful for an explanation as to how the
sentence range for the offence would be set, and by whom. These
are but an example of practical problems that would ensue.
8.38 Suffice it to say at this stage that we find
it hard to conceive of situations in which transferring jurisdiction
to prosecute from one Member State to another in the manner prescribed
by this Article would "improve the efficient and proper administration
of justice".
DEFENCE RIGHTS
8.39 In Article 8 we think it should be obligatory
for the national authority to inform a suspect that a request
for transfer of proceedings has been made. We also think that
the suspect's rights should be set out more fully. As we have
stated before, it is important that defence rights are clearly
set out in the operative part of any Framework Decision that may
have an impact on a defendant's right to a far trial. We also
note that Article 9 is entitled "rights of the victim";
for reasons of parity Article 8 should be entitled "rights
of the suspected person", rather than the current drafting
of "informing the suspected person". We are also unclear
as to what is meant in Article 8 by "if the suspected person
presents an opinion" and how this will be implemented,
and would be grateful for clarification from the Minister.
DEPOSIT OF EU DOCUMENTS
8.40 Finally, we ask the Minister to explain why
the Council's Explanatory Report, which originated on 3 July and
explains the legislative intent behind each of the Articles in
the Framework Decision, was only deposited, after the Committee's
prompting, on 20 July, the day before the Committee's meeting
on 21July.
20 Belgium, Bulgaria, Czech Republic, Denmark, Estonia,
Greece, Spain, France, Lithuania, Latvia, Hungary, Netherlands,
Romania, Slovenia, Slovakia. Back
21
See for example Articles 12(1)(b) and 16(1). The former refers
to ne bis in idem as a ground for refusal; the latter,
which deals with the discontinuance of proceedings in the requesting
State, aims to prevent "parallel proceedings" according
to the Explanatory Report. Back
22
In this regard note should be taken of the decision of the House
of Lords in R v Jones and Milling [2007] 1 AC 136 that
the crime of aggression, albeit with elements of the offence definable
under international law, could not amount to a common law crime
without the approval of Parliament. Back
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