European Scrutiny Committee Contents

8 Transfer of criminal proceedings



+ ADD 1

Draft Council Framework Decision on Transfer of Proceedings in Criminal Matters

Draft Council Framework Decision on Transfer of Proceedings in Criminal Matters — Explanatory Report

Legal baseArticles 31(1)(a) and 34(2)(b) TEU; consultation; unanimity
Deposited in Parliament2 July 2009
Basis of considerationEM of 16 July 2009
Previous Committee ReportNone
To be discussed in CouncilJuly 2009
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested


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.


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


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.


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.


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."


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.


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.


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."


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.


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.


8.31 We limit our comments to initial concerns that have not been raised by the Minister in his Explanatory Memorandum of 16 July.


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.


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.


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".


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.


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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