Explanatory Memorandum to COM(2023)185 - Transfer of proceedings in criminal matters - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)185 - Transfer of proceedings in criminal matters. |
|---|---|
| source | COM(2023)185 |
| date | 05-04-2023 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
With an increase of cross-border crime, EU criminal justice is increasingly confronted with situations where several Member States have jurisdiction to prosecute the same case. For instance, the preparation of a crime can be carried out in one Member State, while the crime can be committed in another Member State; its perpetrators can be arrested in a third Member State and the assets of the crime transferred to a fourth Member State. This is especially true for crimes perpetrated by organised criminal groups, such as drug trafficking, migrant smuggling, trafficking in human beings, firearms trafficking, environmental crime, cybercrime or money laundering. Multiple prosecutions of the same cases pose challenges not only in terms of coordination and effectiveness of criminal prosecutions, but can also be detrimental to the rights and interests of individuals and can lead to duplication of activities. Defendants, victims and witnesses may have to be summoned for hearings in several countries. Most notably, repeated proceedings entail a multiplication of restrictions on their rights and interests, such as of free movement. Within the European area of justice it is appropriate to avoid, where possible, such detrimental effects, and to ensure that criminal proceedings are conducted in the best-placed Member State, for example in the State where the major part of the crime occurred.
Common rules to transfer criminal proceedings from one Member State to another are therefore necessary in order to efficiently fight cross-border crime and to ensure that the best-placed Member State investigates or prosecutes a criminal offence. This cross-border cooperation tool would provide added value by improving the proper functioning of the European area of justice. It therefore would contribute to the efficient and proper administration of criminal justice in the Member States. Such common rules in particular could help to prevent unnecessary parallel proceedings in different Member States concerning the same facts and the same person, that could result in an infringement of the fundamental principle of criminal law, which is enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’), that a person may not be prosecuted or punished twice for the same offence (ne bis in idem principle). They could also reduce the number of multiple proceedings in respect of the same facts or in respect of the same person being conducted in different Member States. It is also in the interest of effective criminal justice to ensure that a transfer of criminal proceedings can take place when the surrender of a person for criminal prosecution under a European Arrest Warrant (‘EAW’)1 is delayed or refused for reasons such as those that parallel proceedings for the same criminal offence are ongoing in the other Member State. This is because, the transfer of criminal proceedings might enable the person being prosecuted to avoid impunity.
While the transfer of criminal proceedings may be necessary in a number of situations, existing measures at EU level do not regulate this form of cooperation. An agreement between the EU Member States on the transfer of proceedings in criminal matters was signed in 19902, but never entered into force due to a lack of ratifications.
In July 2009, the Swedish Presidency introduced an initiative on behalf of 16 Member States3 for a Council Framework Decision on the transfer of proceedings in criminal matters4. However, Member States decided to discontinue negotiations when the Lisbon Treaty entered into force on 1 December 20095.
In the absence of a specific EU legal act, Member States currently transfer criminal proceedings between themselves using a variety of legal instruments, with no uniform legal framework across the EU. The most comprehensive international legal framework on the transfer of criminal proceedings – the European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972 – has only been ratified and applied by 13 Member States. Most Member States use Article 216 of the European Convention on Mutual Assistance in Criminal Matters of 20 April 19597 as a mechanism to request the prosecution of a suspect in another party to the Convention. For this form of cooperation, however, the procedure for transfer is largely unregulated. Other legal bases of cooperation in this area include national laws, bilateral or multilateral agreements or the principle of reciprocity.
In its report on the way forward in the field of mutual recognition of judicial decisions in criminal matters of May 20198, the Romanian Presidency suggested to further explore the need for a legislative proposal on the transfer of criminal proceedings. In December 2020, the Council, in its conclusions on the European Arrest Warrant9, invited the Commission to consider whether an EU instrument on the transfer of criminal proceedings would be feasible and would add value. Eurojust and the European Judicial Network have also raised10 a number of legal and practical issues that authorities face in the absence of clear common rules and procedures, and have called for an EU instrument in this area.
In the absence of a common legal framework and due to differences among Member States’ national criminal justice systems, namely whether the prosecuting authorities of a Member State have the ability to refrain from initiating a prosecution or whether they have a duty to prosecute every crime which falls within their competence, transfers of criminal proceedings have been facing several legal and practical issues. Practical experience shows that the efficiency of the transfer procedure is hampered, in particular, by undue delays and a lack of communication between authorities. Ineffective prosecution has also been singled out as a problem, as transfers of criminal proceedings do not always take place when they would be in the interest of justice, such as in cases where the criminal offence was committed in one Member State, but both the victim and the suspect are located in another Member State. Furthermore, the requested State may not have jurisdiction to prosecute a case, if no connecting factor for jurisdiction could be established. In particular, in situations when the surrender of a person under an EAW is delayed or refused, the lack of jurisdiction to prosecute the case in the requested State might even lead to impunity. The mentioned issues may result in delays in criminal proceedings caused by lengthy transfer procedures, as well as in inefficient use of human and financial resources, such as due to proceedings taking place in parallel in two or more Member States. Furthermore, differences between national systems on the standing, rights and interests of suspects, accused persons and victims in cases of transfers may lead to legal uncertainty and insufficient protection of the rights of the individuals concerned.
To address these problems, the Commission decided to propose a new instrument on the transfer of criminal proceedings. This initiative is included in the Commission’s 2022 work programme11. The proposal has four objectives, namely to:
improve the efficient and proper administration of justice in the EU;
improve the respect of fundamental rights in the process of transfer of criminal proceedings;
improve efficiency and legal certainty of transfers of criminal proceedings; and
enable transfers of criminal proceedings, where they are in the interest of justice, but currently not possible between Member States, and reduce the phenomenon of impunity.
• Consistency with existing provisions in the policy area
Council Framework Decision 2009/948/JHA12 sets out a procedure for the exchange of information and for direct consultations between competent authorities to achieve an effective solution and avoid any adverse consequences arising from parallel proceedings. Similarly, other EU laws concerning criminal matters, particularly for specific types of crime, such as combatting terrorism (the Directive (EU) 2017/541 of the European Parliament and of the Council, Council Framework Decision 2002/475/JHA) and organised crime (Council Framework Decision 2008/841/JHA), set out factors to be taken into account to centralise proceedings in a single Member State when more than one Member State can validly prosecute on the basis of the same facts. However, these legal acts do not regulate the procedure for the transfer of criminal proceedings, which may be a necessary solution in such cases.
Eurojust, in particular, plays a key role in facilitating preliminary contacts and consultations and resolving jurisdiction issues. Eurojust may ask the competent authorities of the Member States concerned to accept that one of them may be in a better position to undertake an investigation or to prosecute specific offences. The competent national authorities are also obliged to inform Eurojust of cases in which conflicts of jurisdiction have arisen or are likely to arise. The objectives of this proposal are consistent with Regulation (EU) 2018/1727 on Eurojust13. In addition, Eurojust has published guidelines on ‘Which jurisdiction should prosecute?’14. By suggesting factors to be taken into consideration in multi-jurisdictional cases, these guidelines have been helping competent national authorities to determine the jurisdiction best placed to prosecute in cross-border cases.
EU instruments for cross-border judicial cooperation in criminal matters cover the recognition of judgements and judicial decisions on: (i) enforcement of sentences15, (ii) surrender of individuals under a European Arrest Warrant; (iii) the gathering of evidence through a European Investigation Order16; as well as the procedures for mutual legal assistance, in particular, the spontaneous exchanges of information17, and the carrying out of criminal investigations through a Joint Investigation Team18. The adoption of common rules on the transfer of criminal proceedings would complement EU legislation on cross-border judicial cooperation, in particular by seeking to avoid the risk of impunity should the surrender of a person reprimanded under an EAW in order to conduct a criminal prosecution be refused. Requests under this proposed Regulation can be issued for any criminal offence. Therefore, the transfer of criminal proceedings may provide a useful alternative to the issuance of an EAW, if that proves disproportionate or impossible, for example because the penalty thresholds are not met. If after adoption of the proposed legal framework, authorities increasingly opt for the transfer of criminal proceedings, the use of EAW procedures could decrease. Similarly, it could lead to a decrease in the use of the European Supervision Order19, which allows a suspect to be subject to a supervision measure in their home Member State until the trial takes place in another Member State, instead of being placed into pre-trial detention.
The proposal builds on the existing EU minimum rules on the rights for individuals in criminal procedure, adopted with the aim to strengthen Member States’ trust in each other's criminal justice systems and thus to facilitate mutual recognition of decisions in criminal matters: the six procedural rights directives 2010/64/EU20, 2012/13/EU21, 2013/48/EU22, 2016/34323, 2016/80024 and 2016/191925, as well as in the Victims’ Rights Directive 2012/29/EU26.
• Consistency with other EU policies
The Hague Programme for strengthening freedom, security and justice in the European Union27 requires Member States to consider possibilities of concentrating the prosecution in cross-border multilateral cases in one Member State, with a view to increasing the efficiency of prosecutions while guaranteeing the proper administration of justice.
The Programme of measures to implement the principle of mutual recognition of decisions in criminal matters28 calls for an instrument enabling criminal proceedings to be transferred to other Member States.
The December 2020 Council conclusions on ’The European arrest warrant and extradition procedures – current challenges and the way forward’ invite the Commission to consider preparing a legislative proposal.
The proposal is part of the 2021-2025 EU strategy to tackle organised crime29.
Training justice professionals on EU law is an essential tool to ensure its correct and effective application. To prepare justice professionals, make them fit for the challenges of the 21st century, and keep them updated on developments in EU law, the Commission adopted a European judicial training strategy for 2021-202430. The strategy’s objective is to ensure that justice professionals receive training on the developments of EU law. In line with that strategy, training of all justice professionals would need to be organised soon after the adoption of this proposal, to ensure the correct and seamless application and use of new digital tools.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for EU action is Article 82(1)(b) and (d) of the Treaty on the Functioning of the European Union (TFEU). This Article sets out the EU’s competence to establish measures, that facilitate cooperation between judicial or equivalent authorities of the Member States on proceedings in criminal matters and prevent and settle conflicts of jurisdiction between Member States.
In line with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union (TEU) and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.
In line with Articles 1 to 3 of Protocol No 21 on the position of Ireland, annexed to the TEU and to the TFEU, Ireland may notify the President of the Council in writing that it wishes to take part in the adoption and application of any such proposed measure, where it will be entitled to do so. The notice must be submitted within 3 months of the proposal’s or initiative’s presentation to the Council under Title V, Part 3 TFEU.
• Subsidiarity (for non-exclusive competence)
Under Article 4(1)(j) TFEU, the competence to adopt measures in the area of freedom, security and justice is shared between the EU and the Member States. Therefore, Member States may act alone to regulate transfer of criminal proceedings.
However, a legal framework on transfer of criminal proceedings cannot be sufficiently and optimally achieved by Member States acting alone since it is a cross-border matter. This is evidenced by the current fragmented legal framework, which poses legal and practical challenges. Bilateral agreements between Member States would also not address the problems, as agreements of this kind would eventually be needed between all Member States.
The replies to the public and targeted consultations confirm that EU action in this area is likely to deliver better outcomes than Member States’ action.
Both the Council and the European Parliament have recognised that these challenges require action beyond the national level. The December 2020 Council Conclusions31 invited the Commission to consider a new proposal, and the December 2021 European Parliament Resolution32 also called for the Commission to put forward a legislative proposal.
Given the cross-border aspect of the problems outlined above, the proposal needs to be adopted at EU level in order to achieve the objectives.
• Proportionality
The proposal lays down rules under which a competent authority in the EU may request to take over criminal proceedings, if that would improve the efficient and proper administration of justice and provided that established criteria are respected. Throughout the proposed text, the options chosen are those that are least intrusive for the national criminal justice systems of the Member States, taking into account in particular that under some of the legal systems prosecution is mandatory (the legality principle) and under others the prosecutor has discretion not to prosecute where it is not in the public interest (the opportunity principle).
The proposal is limited to requests issued in criminal proceedings. Requests can be issued for any criminal offence and therefore the transfer of criminal proceedings would complement the system of surrender of individuals under an EAW and may provide a useful alternative to the issuance of an EAW if that proves disproportionate or impossible, for example because the penalty thresholds are not met. The proposal also gives the requested authority sufficient discretion to refuse a request, in particular if it considers that the transfer is not in the interest of an efficient and proper administration of justice. Moreover, it does not impose any obligation on the requested authority to prosecute a criminal offence.
It sets out a rule that evidence transferred from the requesting State must not be denied admission in criminal proceedings in the requested State on the mere ground that such evidence was gathered in another Member State, but the power of the trial court to freely assess the evidence is not affected by this Regulation. To this effect, the proposal follows rules already laid down in Council Regulation (EU) 2017/193933.
This Regulation provides for jurisdiction in specific cases in order to ensure that for criminal proceedings to be transferred in accordance with this Regulation the requested State can exercise jurisdiction for the offences to which the law of the requesting State is applicable. This jurisdiction can be exercised only upon the request for transfer of criminal proceedings when the interests of efficient and proper administration of justice so require.
The proposal, therefore, does not go beyond the minimum required in order to achieve the stated objective at EU level and what is necessary for that purpose.
• Choice of the instrument
As the proposal concerns cross-border procedures, where uniform rules are required, the Commission proposes a Regulation as the legal instrument. A Regulation is directly applicable in all Member States and binding in its entirety. It therefore guarantees that all Member States apply the rules in the same way and that the rules enter into force at the same time. It ensures legal certainty by avoiding different interpretations between Member States, thus preventing legal fragmentation and other issues currently affecting the transfer of criminal proceedings.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
In preparing the proposal, the Commission conducted extensive consultations in 2021 and 2022. The consultations targeted a wide range of stakeholders representing citizens, public authorities, academics and other relevant interest groups. The consultations consisted of (i) public feedback to the call for evidence; (ii) an open public consultation; (iii) targeted consultations with Member States’ authorities, Eurojust, European Judicial Network, the European Public Prosecutor’s Office, Europol, the European Union Agency for Fundamental Rights; (iv) a meeting with experts of the Member States’ authorities and (v) a meeting with the Commission’s Criminal Law Expert Group.
Overall, there is broad consensus that the EU should address the current problems with transfers of criminal proceedings by adopting a new legislative instrument. It has been repeatedly pointed out that a more efficient cross-border procedure is needed and that authorities face a number of issues in the current legal set–up that stem from a lack of clear common procedures, such as lack of communication, undue delays in transfer procedures, high costs of translation of documents and unjustified transfer requests.
The feedback received informed the preparation of the proposal and the accompanying staff working document. A detailed summary of the outcome of the Commission’s consultations is included in the staff working document.
• Collection and use of expertise
Aside from the above-mentioned stakeholder consultations, the Commission collected and used expertise from other sources.
In particular, the proposal draws on the reports from Eurojust and the European Judicial Network34.
The proposal also takes into account the results of a research project on transfer of criminal proceedings in the EU35 which was co-funded by the European Commission from the Justice programme.
• Staff working document
The proposal is accompanied by a Commission staff working document36, which contains a detailed problem description and sets out the objectives of the proposal. It also analyses the proposed solution in terms of its effectiveness, efficiency, fundamental rights and coherence with other EU cross-border judicial cooperation instruments.
No impact assessment was carried out for this initiative mainly due to lack of realistic options and limited impacts on citizens and businesses37. Overall, the staff working document concludes that the proposal is expected to significantly increase the effectiveness of transfer of criminal proceedings in different ways, as it would: (i) enhance security through capacity to investigate, prosecute and sanction crime; (ii) reduce delays in the transfer procedure; (iii) enable transfers of criminal proceedings where they are currently missing; and (iv) bring increased legal certainty.
By establishing a complete procedure for requesting and taking a decision on the transfer of criminal proceedings with a common list of criteria, an exhaustive list of grounds for refusal and clear obligations to respond, the proposal is expected to increase the number of successfully transferred criminal proceedings. A comprehensive legal framework would provide greater legal certainty for all stakeholders concerned and reduce the level of fragmentation.
The impact for citizens is expected to be positive. In a situation where individuals would be parties in criminal proceedings, be it as suspects or as victims, a common legal framework would contribute to ensuring the proximity of proceedings, to take place in the Member State of their nationality/residence, if possible. While this will not apply in all cases, as it will depend on the circumstances of each case (e.g. multiple suspects or victims from different Member States), an overall positive impact for them is expected.
The establishment of the decentralised IT system is expected to render communication between authorities more efficient and effective. Communication through this electronic tool is intended to save time and cost for the authorities. The decentralised IT system would allow speeding up the flow of information among its users, increase security of the exchanged data, as well as enhance transparency. The use of the digital channel can also be expected to have a positive environmental impact due to the use of less paper and postage. In addition, positive impacts are anticipated on simplification and administrative burdens.
• Fundamental rights
Parallel proceedings ongoing in different Member States in respect of the same crime are not only difficult to coordinate and prosecute effectively, but also create disproportionate burdens on the persons involved, who become subject to a duplication of procedures and face multiple restrictions on their rights and interests due to different arrest warrants, searches and interrogations being carried out in two or more Member States. They also risk violating the fundamental principle of criminal law that a person may not be prosecuted and punished twice for the same offence. By facilitating transfers of criminal proceedings between Member States, the proposal aims to prevent such violations and to ensure that proceedings are concentrated in the Member State that is best placed to prosecute. The increasing number of preliminary references to the Court of Justice of the European Union in the past years, seeking clarifications on the interpretation of the ne bis in idem principle under EU law proves that parallel proceedings, which may lead to violations of the principle, are likely to occur in practice and are often difficult to spot and resolve. This is also reflected in Eurojust’s casework38, where it is observed that very often, when national authorities become aware of the existence of parallel proceedings with the same facts and against the same individual in another Member State, the transfer of criminal proceedings is the essential solution to avoid violations of the ne bis in idem principle and to comply with Article 50 of the Charter and Article 54 of the Convention Implementing the Schengen Agreement.
The proposal includes a number of guarantees to ensure the respect of fundamental rights of the individuals involved in the transfer procedure. The intervention of a judicial authority when the transfer is requested both in the requesting and requested State ensures that the legality of the measure has been checked and that the request does not unduly impinge on fundamental rights. The requesting authority is required to ensure in the individual case that the criteria for transferring criminal proceedings are met. Moreover, the suspect or accused person, as well as victims residing in the requesting State, must be consulted on the intended transfer and must be given an opportunity to state their opinion in a language they understand. Suspects and accused persons, as well as victims residing in the requesting State, are informed of the decision whether to accept or refuse the transfer of criminal proceedings, as well as of the remedies available to challenge the decision to accept the transfer. Exceptions may apply both to the consultation obligation and the obligation to provide information about the decision taken where this might prejudice the confidentiality of investigation. The proposal specifically provides for the right to an effective remedy for suspects, accused persons and victims against the decision to accept the transfer of criminal proceedings. The review by a judicial authority serves as a further safeguard here. There are also grounds for refusal based on the non-respect of the ne bis in idem principle, as well as on immunities and privileges. Furthermore, as a general safeguard, the proposal explicitly states that its provisions should not be interpreted as having the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 of the TEU.
Finally, since the proposal regulates the transfer of criminal proceedings, all criminal law procedural safeguards apply to those criminal proceedings. This includes in particular the right to a fair trial and the rights of defence, as enshrined in Article 6 of the European Convention on Human Rights and Articles 47 and 48 of the Charter. It also includes the relevant legislation at EU level on procedural rights for suspects and accused persons in criminal proceedings, namely Directives 2010/64/EU, 2012/13/EU, 2013/48/EU, 2016/343, 2016/800 and 2016/1919. By establishing minimum standards of protection in criminal proceedings across the EU these Directives lead to increased confidence in the criminal justice systems of all Member States, which, in turn, ensure more efficient judicial cooperation in a climate of mutual trust.
4. BUDGETARY IMPLICATIONS
Member States may incur one-off costs to adjust to the new rules of the Regulation, in particular costs arising from the need to train judges, prosecutors and other competent authorities on the new rules. The main recurrent costs are expected to be the translation costs of the case-file documents. However, these costs are expected to be somewhat outweighed by the efficiency gains and cost savings brought about by the Regulation.
The proposal’s provisions on electronic communication through the decentralised IT system in accordance with the Regulation (EU) ../…. [the Digitalisation Regulation]39 would also have an impact on the EU budget. These costs, to be covered by the Justice programme budget, would be minor because the decentralised IT system would not need to be developed from scratch, but would be developed for many EU tools for judicial cooperation in criminal matters under [the Digitalisation Regulation], with only small adjustments needed for the procedure put forward by this proposal.
Member States would also incur some costs to install and maintain the decentralised IT system’s access points located on their territory and to adjust their national IT systems to make them interoperable with the access points. However, as noted, the bulk of these financial investments would have already been made in the context of the digitalisation of other EU instruments on judicial cooperation in criminal matters. In addition, Member States would be able to apply for grants to finance these costs under the relevant EU financial programmes, in particular the cohesion policy funds and the Justice programme.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
A Regulation is directly applicable in all Member States, without first needing to be transposed into national law. Appropriate monitoring, evaluation and reporting obligations are envisaged in the proposal.
Member States’ expert meetings will be organised by the Commission to discuss problems arising from the transfer of criminal proceedings. Eurojust and the European Judicial Network will play an important role in the transfer procedure. These forums, as well as other professional networks can be used to gather feedback from practitioners (Member State public authorities) on experiences and problems with the practical application of the Regulation.
The Commission will submit a report to the European Parliament and the Council within 5 years after the Regulation becomes applicable. The report will be based on the input from Member State authorities and other relevant stakeholders, among other sources.
• Detailed explanation of the specific provisions of the proposal
The proposal consists of five Chapters: (i) general provisions; (ii) transfer of criminal proceedings; (iii) effects of the transfer of criminal proceedings; (iv) means of communication; and (iv) final provisions.
Contents
Article 1 sets out the subject matter of the proposal. The proposal lays down rules under which a Member State can take over a criminal proceeding upon request of another Member State. The proposal applies in all cases of transfer of criminal proceedings in the EU from the moment a person has been identified as a suspect.
Article 2 defines, for the purposes of the proposal, the terms ‘requesting State’, ‘requested State’, ‘requesting authority’, ‘requested authority’, ‘decentralised IT system’ and ‘victim’.
The definition of ‘requesting’ and ‘requested’ authority must be read together with Article 30 whereby Member States are required to notify to the Commission the competent requesting and requested authorities.
Article 3 provides for jurisdiction in specific cases. The requested authority may accept the transfer of a criminal proceeding only if it has jurisdiction to prosecute the criminal offence. In order to improve the efficiency of the procedure for transfers, this provision therefore provides that in situations listed in that Article jurisdiction is conferred to the requested State in cases where it would not otherwise have jurisdiction. The requested State should have jurisdiction to try the criminal offences for which the transfer is sought, whenever that Member State is considered as the best placed to prosecute. Such jurisdiction can be exercised only upon a request for the transfer of criminal proceedings from another Member State which has original jurisdiction to prosecute the criminal offence.
Article 4 aims to provide a legal basis for the authorities in the requesting State having original jurisdiction to institute criminal proceedings to waive, suspend or discontinue the criminal proceedings in favour of a Member State identified as being in a better position to prosecute. The provision is devised for Member States which have legal systems based on mandatory prosecution to be able to avail themselves of the provisions of this Regulation.
This Chapter provides for the criteria and procedure for requesting the transfer of criminal proceedings and for the procedure for taking a decision on the transfer of criminal proceedings. Such common rules aim to prevent unnecessary parallel criminal proceedings concerning the same facts and the same person being conducted in two or more Member States, as well to reduce the number of multiple proceedings and to avoid impunity where the surrender of a person for whom a European Arrest Warrant was issued is refused.
Article 5 sets out the criteria for requesting a transfer of criminal proceedings.
This Regulation covers all criminal offences. Criminal proceedings are understood as covering all stages of the criminal proceedings, including pre-trial and trial stage. This Regulation does not apply to requests for transfer of administrative proceedings.
This Regulation does not impose any obligation to request a transfer of criminal proceedings. If the requesting authority considers that transferring a criminal proceeding is necessary and appropriate and that, in particular, one or more of the criteria listed under Article 5(2) are applicable, it may request the other Member State that is better placed to prosecute the criminal offence to take over those criminal proceedings. The list of criteria is non-exhaustive. Whether a request for transfer of criminal proceedings is justified should be carefully assessed on a case-by-case basis in order to identify the Member State that is best placed to prosecute the criminal offence in question and any request should be clearly motivated.
This Regulation also gives the suspect or accused person, or the victim, the possibility to request the competent authorities of the requesting State or of the requested State to initiate a procedure for transferring criminal proceedings. Such requests do not, however, create an obligation for the requesting or the requested State to request or transfer criminal proceedings to the requested State.
Article 6 sets out rules on taking into account the rights and interests of the suspect or accused person when deciding to transfer criminal proceedings. In particular, the requesting authority is obliged to inform the suspect or accused person of the intended transfer of criminal proceedings and to give them the opportunity to state their opinion, provided this would not undermine the need to ensure confidentiality of an investigation and unless the suspect or accused person cannot be located despite reasonable efforts being made by the requesting authority. This opinion should be duly considered by the requesting authority when deciding on the transfer.
Article 7 sets out rules on taking into account the rights and interests of the victim when deciding to transfer criminal proceedings. In particular, where the victim is residing in the requesting State, the requesting authority is obliged to inform the victim of the intended transfer of criminal proceedings and to give them the opportunity to state their opinion, provided this would not undermine the need to ensure confidentiality of an investigation. This opinion should be duly considered by the requesting authority when deciding on the transfer.
Article 8 stipulates that a legal remedy should be guaranteed in the requested State against the decision to accept the transfer of criminal proceedings.
Article 9 lays down the procedure for requesting a transfer of criminal proceedings. The request for transfer of criminal proceedings must be made by completing a standard certificate set out in the Annex to the proposal. This article also sets out the translation requirements for the request and any other written information accompanying the request. The proposal provides for a direct transmission of a request between the requesting and requested authorities but also allows for the possibility of assistance by central authorities.
Article 10 requires the requesting authority to inform the requested authority without undue delay of any procedural acts or measures with a bearing on the criminal proceedings that have been undertaken in the requesting State after the transmission of the request.
Article 11 provides the possibility for the requesting authority to withdraw their request for the transfer of a criminal proceeding at any time before receiving the requested authority's decision to accept the transfer.
Article 12 stipulates that the requested authority must take a decision on whether to accept the transfer of a criminal proceeding and must take necessary measures in accordance with its national law when it has decided to accept the transfer of criminal proceedings. The requested authority remains at liberty to decide which steps to take in respect of the criminal offence underlying the request. Nothing in this Regulation should be interpreted as interfering with any prosecutorial discretion provided for in national law and there is no obligation to prosecute a case that has been transferred. This Regulation also obliges the requesting authority to forward the necessary documents from the case file to the requested authority once the latter has accepted the transfer of criminal proceedings, but it leaves it up to the requesting and requested authorities to consult and agree among themselves which documents should be sent and translated.
Article 13 provides an exhaustive list of grounds for refusing the transfer of a criminal proceeding, both mandatory and non-mandatory. Mandatory grounds for refusal refer to situations where the prosecution of the facts underlying the criminal proceedings that are subject to the transfer would not be possible in the requested State, such as when the conduct for which transfer is sought is not considered a criminal offence in the requested State. Non-mandatory grounds for refusal cover other situations which may create an obstacle for taking over a criminal proceeding. In particular, they allow the requested authority the flexibility to refuse the transfer of a criminal proceeding that they do not consider to be in the interest of an efficient and proper administration of justice.
To ensure efficient cross-border procedures, Article 14 lays down a time limit for taking a decision on whether to accept the transfer. It also provides for the interruption of the time limit where there is a need to request a waiver of a privilege or immunity.
Article 15 encourages the requesting and requested authorities to consult each other without delay to ensure the efficient application of this Regulation.
Article 16 sets out that the requesting and requested authorities may request the assistance of Eurojust or the European Judicial Network at any stage of the procedure.
Article 17 stipulates that each Member State shall bear its own costs of transfers of criminal proceedings, however, the requesting authority may in certain cases submit a proposal on cost sharing to the requested authority.
Article 18 gives the possibility to designate central authorities for the purpose of administrative assistance. Should a Member State wish to use this possibility, it is required to notify to the Commission of the designated central authority in accordance with Article 30.
This Chapter lays down the effects of transfer of criminal proceedings.
Article 19 stipulates that in the requesting State, the transferred criminal proceedings must be suspended or discontinued upon the receipt of information confirming that the requested authority is taking over that criminal proceeding. The requesting authority may continue or reopen the criminal proceeding only if the requested authority takes a decision to discontinue it, provided that such a decision does not infringe the ne bis in idem principle. The possibility for the victim to initiate or to request the reopening of the criminal proceeding in the requesting State in accordance with the national law of that State remains unaffected as long as it does not infringe the ne bis in idem principle.
Article 20 stipulates that the national law and procedures of the requested State apply to the criminal proceeding once it is transferred. Any act, investigative measure or evidence gathered in the requesting State for the purpose of the criminal proceeding in question should have the same validity in the requested State as if it had been validly performed by its authorities, unless this would be contrary to the fundamental principles of law of the requested State. When a criminal proceeding has been transferred, the requested State should apply its national law to determine the sentence for the criminal offence in question. If the criminal offence was perpetrated in the territory of the requesting State, when determining the sentence, the requested authorities may take into consideration the maximum penalty envisaged in the law of the requesting State, as long as this is to the benefit of the accused person and in accordance with the law of the requested State. The purpose of the provision is to avoid situations where the transfer of criminal proceedings would lead to the requested State applying a higher sentence than the maximum penalty envisaged for the same offence in the requesting State. This is to ensure compliance with the principle of legal certainty and foreseeability of the applicable law for the suspects or accused persons concerned.
Article 21 obliges the requested authority to inform the requesting authority of any decision delivered at the end of the criminal proceedings.
This Chapter contains provisions on means of electronic communication between the requesting and requested authorities, as well as with central authorities and with Eurojust, through a decentralised IT system.
This Chapter contains provisions on statistics, reporting, adoption of delegated acts should there be a need to amend the certificate annexed to this proposal, notifications by Member States, relationship of the proposal with international agreements and arrangements as well as transitional provisions on the means of communication between the authorities before the obligation to use the decentralised IT system becomes applicable.