Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU (Comparative, European and International Criminal Justice, 3) 3031156900, 9783031156908

Table of contents :
Foreword
Acknowlegements
Contents
Abbreviations
Chapter 1: Jurisdiction and Conflicts of Criminal Jurisdiction Within the European Union
1.1 Introduction
1.2 Criminal Jurisdiction and ius puniendi
1.3 Grounds for Claiming Jurisdiction
1.3.1 Previous Considerations
1.3.2 Principle of Territoriality
1.3.3 Extraterritorial Principles for Claiming Jurisdiction
1.3.3.1 Principle of Personality
1.3.3.2 Principle of Protection
1.3.3.3 Principle of Universality
1.3.3.4 Principle of Vicarious or Representational Jurisdiction
1.3.4 Rules on Jurisdiction Within International and Supranational Instruments
1.4 Conflicts of Criminal Jurisdiction: General Profiles
1.4.1 The ``Hierarchy Issue´´ on the Allocation of Jurisdiction
1.4.2 Conflicts of Criminal Jurisdiction
1.4.2.1 Positive Conflicts of Jurisdiction
1.4.2.2 Negative Conflicts of Jurisdiction
References
Further Reading
Chapter 2: EU Legal Framework on Conflicts of Criminal Jurisdiction
2.1 Primary Law
2.1.1 Background
2.1.2 Current Legal Basis in the Treaties
2.1.2.1 Art. 82(1)(b) TFEU
2.1.2.2 Art. 85(1)(c) TFEU
2.1.2.3 Compatibility of Both Provisions
2.1.3 Other Relevant Primary Law: CISA and CFREU
2.2 The Framework Decision 2009/948/JHA
2.2.1 Background
2.2.2 Procedure
2.2.3 Limits and Shortcomings
2.3 The Role of Eurojust in the Prevention and Settlement of Conflicts of Jurisdiction
2.3.1 Background
2.3.2 Limited Powers Granted to Eurojust
2.3.3 Eurojust´s Guidelines for Deciding on Jurisdiction
2.4 Lack of EU Instruments for Transfer of Criminal Proceedings
2.4.1 The Concentration of Proceedings as an Ideal Procedural Solution
2.4.2 Transfer of Criminal Proceedings Provided by International Law
2.5 Implementation into National Law: The Spanish and Italian Examples
2.5.1 Procedure Acting as Contacting Authority
2.5.1.1 Spain
2.5.1.2 Italy
2.5.2 Procedure Acting as Contacted Authority
2.5.2.1 Spain
2.5.2.2 Italy
2.5.3 Agreement on the Settlement of the Conflict
2.5.3.1 Spain
2.5.3.2 Italy
2.5.4 Referring the Case to Eurojust
2.5.4.1 Spain
2.5.4.2 Italy
References
Further Reading
Chapter 3: Conflicts of Jurisdiction and Due Process of Law
3.1 Introduction
3.2 The ne bis in idem Principle
3.2.1 National Dimension
3.2.2 Transnational Dimension
3.3 Right to Be Heard by a Court Previously Established by Law
3.4 Substantive Legality
3.5 Procedural Safeguards and the Right to Defence of the Suspected or Accused Person
3.6 Victim´s Interest in the Allocation of Jurisdiction
3.7 Negative Consequences for the Effective Prosecution of Crimes
References
Further Reading
Chapter 4: Towards a New Model of Settlement of Conflicts: Background and Methodology
4.1 Foreword
4.2 Legislative Backgrounds
4.2.1 The Council of Europe Proposal
4.2.2 The EPPO as a Potential Example of a Vertical Mechanism
4.3 Model Proposals and Explanatory Notes
4.3.1 Methodology and Approach
4.3.2 Scope of Application
4.3.2.1 Parallel Investigations and Proceedings
4.3.2.2 Criminal Investigations and Proceedings Stricto Sensu
4.3.3 Study on Viability
4.3.3.1 Inability of Unifying Grounds for Claiming Jurisdiction
4.3.3.2 Inability of Models Based on Applying Foreign Substantive Criminal Law
4.3.3.3 Improving Information Exchange as a Mandatory Previous Action
References
Further Reading
Chapter 5: De Lege Ferenda Proposals on Settlement of Conflicts of Criminal Jurisdiction: Model A-Horizontal Approach
5.1 General Aspects and Explanation
5.2 Action 1: Replacing Framework Decision 2009/948/JHA
5.2.1 Legal Basis and Proper EU Legal Instrument
5.2.2 Subject Matter and Scope
5.2.3 Procedure
5.2.4 Deadlines
5.2.5 Procedural Effects in National Criminal Proceedings
5.2.6 Connecting Factors
5.2.7 Final Decision and Agreement
5.3 Action 2: New Instrument on Transfer of Criminal Proceedings
5.3.1 Rationale
5.3.2 Legal Basis and Proper EU Legal Instrument
5.3.3 Subject Matter and Scope
5.3.4 Waiving or Discontinuing Proceedings
5.3.5 Conditions for Requesting a Transfer
5.3.6 Procedure
5.3.7 Procedural Effects in National Criminal Proceedings
5.3.8 Grounds for Refusal
5.4 The Role of Eurojust
5.4.1 Role in the Proposed Instruments on Prevention and Settlement of Conflicts
5.4.2 Powers Granted in Eurojust´s Regulation
5.5 Judicial Review
5.5.1 National Level
5.5.2 Supranational Level
References
Further Reading
Chapter 6: De Lege Ferenda Proposals on Settlement of Conflicts of Criminal Jurisdiction: Model B-Vertical Approach
6.1 General Aspects and Explanation
6.2 Action 1: Replacing Framework Decision 2009/948/JHA
6.2.1 Legal Basis and Proper EU Legal Instrument
6.2.2 Subject Matter and Scope
6.2.3 Procedure
6.2.3.1 Competence and Locus Standi
6.2.3.2 Stage of Proceedings and Momentum
6.2.3.3 Referral Duty
6.2.4 Deadlines
6.2.5 Procedural Effects in National Criminal Proceedings
6.2.6 Connecting Factors
6.3 Action 2: New Instrument on Transfer of Criminal Proceedings
6.3.1 Rationale, Legal Basis and Scope
6.3.2 Conditions for Requesting a Transfer
6.3.3 Grounds for Refusal
6.4 The Role of Eurojust
6.4.1 Eurojust´s Binding Decision: Rationale and Legal Basis
6.4.2 Eurojust Assistance in the Proposed Instrument on Settlement of Conflicts
6.4.3 Powers Granted in Eurojust´s Regulation
6.5 Judicial Review
6.5.1 Supranational Judicial Control of the Decision: Rationale and Legal Basis
6.5.2 Remedies Available According to Current EU Primary Law
6.5.3 Judicial Review Models in Practice and Other Academic Proposals
6.5.4 Supranational Judicial Review: Proposal According to De Lege Lata System
6.5.5 Supranational Judicial Review: Specialized Court Pursuant to Art. 257 TFEU
References
Further Reading
Horizontal Model
Action 1
Horizontal Model
Action 2
Vertical Model
Action 1
Vertical Model
Action 2

Citation preview

Comparative, European and International Criminal Justice 3

Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU Alejandro Hernández López

Comparative, European and International Criminal Justice Volume 3

Editor-in-Chief Roberto E. Kostoris, University of Padua, Padua, Italy Series Editors Mirjan Damaška, Yale University, New Haven, USA Juan Luis Gómez Colomer, Jaume I University, Castellón de la Plana, Spain Giulio Illuminati, University of Bologna, Bologna, Italy John Jackson, University of Nottingham, Nottingham, UK Bruce Smith, University of Denver, Denver, USA Mark A. Zöller, University of Trier, Trier, Germany Associate Editors Michele Caianiello, University of Bologna, Bologna, Italy Marcello Daniele, University of Padua, Padua, Italy Michele Papa, University of Florence, Florence, Italy Pier Paolo Paulesu, University of Padua, Padua, Italy Advisory Editors Lorena Bachmaier Winter

, Complutense University of Madrid, Madrid, Spain

Marta Bargis, University of Eastern Piedmont Amedeo Avogadro, Vercelli, Italy Silvia Barona Vilar, University of Valencia, Valencia, Spain Mireille Delmas-Marty, Collège de France, Paris, France Emilio Dolcini, University of Milan, Milan, Italy Piotr Hofmański, International Criminal Court, The Hague, The Netherlands Maria Kaiafa-Gbandi, Aristotle University of Thessaloniki, Thessaloniki, Greece André Klip, Maastricht University, Maastricht, The Netherlands Raimo Lahti, University of Helsinki, Helsinki, Finland Katalin Ligeti, Department of Law, University of Luxembourg, Luxembourg, Luxembourg

Renzo Orlandi, University of Bologna, Bologna , Italy Francesco Palazzo, University of Florence, Florence, Italy Viorel Pașca, West University of Timișoara, Timișoara, Romania Paulo Pinto de Albuquerque, European Court of Human Rights, Strasbourg, France Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany Stephen Thaman, Saint Louis University, St. Louis, MO, USA John A. E. Vervaele, Utrecht University, Utrecht, The Netherlands Anne Weyembergh, Université Libre de Bruxelles, Brussels, Belgium James Q. Whitman, Yale University, New Haven, USA Raúl Zaffaroni, Inter-American Court of Human Rights, San José, Costa Rica Assistant Editor Massimo Bolognari, University of Padua, Padova, Italy

This book series focuses on criminal justice from multiple perspectives. In particular, it addresses three main areas: • Comparative issues, including historical ones, in order to highlight the common roots of criminal justice in common and civil law systems, both past and present. • European issues, in order to raise awareness of the link between national and transnational levels, in the perspective of the European Union law and the European Convention on Human Rights law, in the area of criminal justice, namely focusing on the protection of fundamental rights and on judicial and police cooperation. • International issues, namely those related to the functioning of the International Criminal Court and of the other international criminal tribunals, but also in regard to international human rights courts. The book series addresses the phenomenon of criminal justice with a particular, but not exclusive, focus on procedural aspects, from a multidisciplinary perspective – an essential approach in today’s globalized world. It provides academic readers with authoritative and timely debates on the emerging issues of criminal justice, and also offers judges and lawyers useful indications and suggestions.

Alejandro Hernández López

Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU

Alejandro Hernández López Faculty of Law University of Valladolid Valladolid, Spain

This work was supported by Fundación Manuel Serra Domínguez ISSN 2524-4558 ISSN 2524-4566 (electronic) Comparative, European and International Criminal Justice ISBN 978-3-031-15690-8 ISBN 978-3-031-15691-5 (eBook) https://doi.org/10.1007/978-3-031-15691-5 © Springer Nature Switzerland AG and G.Giappichelli Editore 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

In the classic state approach, the sovereign designs his ius puniendi in relation to offences that have been committed on his territory. This power is part of what the French call “le pouvoir régalien de l’état”. To the extent that judicial authorities need cooperation or mutual legal assistance from foreign authorities, be it for extradition or for gathering evidence abroad, requests are based on bilateral or multilateral treaties. This judicial cooperation has a governmental character and is based on mutual trust and comity. In such a model, conflicts of jurisdiction are mainly an issue that fall within the jurisdiction of a single state, as foreign judicial decisions, as a rule, are not recognized. With the increasing integration in the internal market and certainly the setting up of Schengen and the Area of Freedom, Security and Justice (AFSJ), the state-centric approach has been replaced by a different model in which the member states and the European Union are jointly responsible for achieving Treaty goals such as guaranteeing security for its citizens, and the prevention and combating of crime in combination with respect for fundamental rights and the rule of law. For the realization of these common goals in a common territory (albeit the combined territories of the member states), since the Treaty of Amsterdam (1999) the European legislator has introduced new instruments of judicial cooperation based on the concept of mutual recognition. In this model, judicial authorities are cooperating directly with each other and they recognize each other’s judicial decisions, including final decisions on criminal responsibility and sentencing. Moreover, the European legislator has harmonized many transnational crimes and imposed extended jurisdiction criteria. In such a model, there is an increasing risk of parallel investigations, prosecutions, and thus also of positive conflicts of jurisdiction. With the transnational reach of the ne bis in idem protection in the AFSJ, there is also the risk that ne bis in idem turns into a partial regulator of conflicts, which is of course not the task of this fundamental right. Otherwise, even with an increased obligation of jurisdiction in the law, there is still the risk that national judicial authorities are not willing to trigger their jurisdictions in practice and that by these negative conflicts of

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jurisdiction the victims of offences in the AFSJ will remain unprotected and allegations of serious transnational crimes will end up in impunity. As it stands, Eurojust can only mediate in such conflicts at the request of the member states, and without imposing binding decisions. By introducing a specific legal basis in Articles 82(1)(b) and 85(1)(c) TFEU for legislative action in relation to conflicts of jurisdiction, the member states have demonstrated that they are aware of the necessity for a new legal instrument to solve these conflicts. However, up until now, neither the European Commission nor a group of member states have tabled any proposal in that respect and neither have they given Eurojust the competence to issue binding decisions on conflicts of jurisdiction in the new regulation. In this book, Alejandro Hernández López offers us not only an in-depth analysis of the conceptual dimensions of the topic (Chap. 1) and its legal framework in the EU from the perspective of effective enforcement (Chap. 2), but also from the perspective of compliance with fundamental rights, such as the ne bis in idem principle and the due process of law (Chap. 3). Moreover, in this analysis, he integrates the relationship between conflicts of jurisdiction and the transfer of criminal proceedings. As it stands, the EU does not have the proper instruments for the transfer of criminal proceedings between member states. The Council of Europe’s European Convention on the Transfer of Criminal Proceedings from 1972 is now outdated, has been insufficiently ratified, and is seldom used. Within the framework of the AFSJ the author, rightly so, analyses to which extent there is a necessity to provide for EU law on this transfer of proceedings, including eventually also the transfer of criminal jurisdiction as such. The assessment of the actual legal framework (de lege lata) is not only done through the lens of EU law, but also through the lens of interaction with national law. The study of the Spanish and Italian national dimensions offers us a very rich insight into how the existing EU law is received (or not) in the domestic legal orders and to which extent these national legal orders and their judicial authorities are able to accomplish the tasks in the AFSJ. Thanks to his extensive contacts with the judicial authorities and his internship at Eurojust, the author also offers us an assessment that is not only based on legal scholarship, but also on judicial practice. Alejandro Hernández López maintains in his conclusion on the actual legal framework (Chap. 4) that “there is no procedure that establishes a homogeneous solution, nor one which guarantees that once the conflict has occurred, it will be settled after consideration of all the circumstances applicable to the case and in the interest of proper administration of justice”. For this reason, he proposes to trigger the mentioned legal basis in the TFEU and to design a new model for settling conflicts of jurisdiction, and for this purpose he has come up with a new methodology in Chap. 4. Fortunately for the reader, the author elaborates de lege ferenda proposals for the settlement of conflicts of jurisdiction in a horizontal setting (Chap. 5) as well as in a vertical setting, mainly including Eurojust and to some extent also the European

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Public Prosecutor’s Office (Chap. 6). These two chapters are not just an outlook, but cover nearly half of the book. In line with his approach in the former chapters, he also combines a proposal for a regulation on conflicts of jurisdictions with a proposal for a regulation on the transfer of proceedings. In his opinion, the proposal on the transfer of proceedings could be based on Article 82(1)(d) TFEU. Finally, his proposals also include important fundamental rights issues on judicial review both in relation to the choice of jurisdiction in the case of conflict or on the concentration of proceedings in the case of a transfer. At the end of the book, annexes with the drafts of both regulations, be it in a horizontal setting or in a vertical setting, are also included. This book takes stock of all existing scholarship and legal developments in this field and offers the reader an excellent insight into the need for new legislative steps to be taken. Based on a detailed and high-quality analysis, the author elaborates a new model and concrete proposals for regulations on the settlement of conflicts and the transfer of proceedings, both from a horizontal and a vertical perspective, and the reader is therefore given a very clear idea of the importance of the legislative innovation in the AFSJ. Without a doubt, I would strongly recommend this book to everyone who is interested in the judicial dimension of the AFSJ. It offers food for thought for legislators and judicial practitioners alike, as well as for legal scholars. Utrecht University, Utrecht The Netherlands April 2022

John A. E. Vervaele

Acknowlegements

This book has been written within the framework of the Research Projects “Garantías procesales de investigados y acusados: la necesidad de armonización y fortalecimiento en el ámbito UE” (Ministerio de Economía y Competitividad, ref. DER2016-78096-P) and “Proceso penal y Unión Europea. Análisis y propuestas” (Ministerio de Ciencia e Innovación, ref. PID2020-116848GB-I00). It has also been financially supported by the Private entity Fundación Manuel Serra Domínguez (http://www.manuelserradominguez.org/).

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Contents

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Jurisdiction and Conflicts of Criminal Jurisdiction Within the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Criminal Jurisdiction and ius puniendi . . . . . . . . . . . . . . . . . . . . . 1.3 Grounds for Claiming Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Previous Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.2 Principle of Territoriality . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.3 Extraterritorial Principles for Claiming Jurisdiction . . . . . . 1.3.3.1 Principle of Personality . . . . . . . . . . . . . . . . . . . 1.3.3.2 Principle of Protection . . . . . . . . . . . . . . . . . . . . 1.3.3.3 Principle of Universality . . . . . . . . . . . . . . . . . . . 1.3.3.4 Principle of Vicarious or Representational Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.4 Rules on Jurisdiction Within International and Supranational Instruments . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Conflicts of Criminal Jurisdiction: General Profiles . . . . . . . . . . . . 1.4.1 The “Hierarchy Issue” on the Allocation of Jurisdiction . . . 1.4.2 Conflicts of Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . 1.4.2.1 Positive Conflicts of Jurisdiction . . . . . . . . . . . . . 1.4.2.2 Negative Conflicts of Jurisdiction . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EU Legal Framework on Conflicts of Criminal Jurisdiction . . . . . . 2.1 Primary Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 Current Legal Basis in the Treaties . . . . . . . . . . . . . . . . . 2.1.2.1 Art. 82(1)(b) TFEU . . . . . . . . . . . . . . . . . . . . . 2.1.2.2 Art. 85(1)(c) TFEU . . . . . . . . . . . . . . . . . . . . . 2.1.2.3 Compatibility of Both Provisions . . . . . . . . . . . 2.1.3 Other Relevant Primary Law: CISA and CFREU . . . . . . .

. . . . . . . .

1 1 8 10 10 11 14 14 19 20 22 24 26 26 27 27 29 30 32 33 33 33 34 34 34 35 35 xi

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2.2

The Framework Decision 2009/948/JHA . . . . . . . . . . . . . . . . . . . 2.2.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 Limits and Shortcomings . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Role of Eurojust in the Prevention and Settlement of Conflicts of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Limited Powers Granted to Eurojust . . . . . . . . . . . . . . . . . 2.3.3 Eurojust’s Guidelines for Deciding on Jurisdiction . . . . . . . 2.4 Lack of EU Instruments for Transfer of Criminal Proceedings . . . . 2.4.1 The Concentration of Proceedings as an Ideal Procedural Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Transfer of Criminal Proceedings Provided by International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Implementation into National Law: The Spanish and Italian Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 Procedure Acting as Contacting Authority . . . . . . . . . . . . . 2.5.1.1 Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1.2 Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.2 Procedure Acting as Contacted Authority . . . . . . . . . . . . . 2.5.2.1 Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.2.2 Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.3 Agreement on the Settlement of the Conflict . . . . . . . . . . . 2.5.3.1 Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.3.2 Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.4 Referring the Case to Eurojust . . . . . . . . . . . . . . . . . . . . . 2.5.4.1 Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.4.2 Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Conflicts of Jurisdiction and Due Process of Law . . . . . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The ne bis in idem Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 National Dimension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Transnational Dimension . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Right to Be Heard by a Court Previously Established by Law . . . . 3.4 Substantive Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Procedural Safeguards and the Right to Defence of the Suspected or Accused Person . . . . . . . . . . . . . . . . . . . . . . . 3.6 Victim’s Interest in the Allocation of Jurisdiction . . . . . . . . . . . . . 3.7 Negative Consequences for the Effective Prosecution of Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5

Towards a New Model of Settlement of Conflicts: Background and Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Legislative Backgrounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 The Council of Europe Proposal . . . . . . . . . . . . . . . . . . . . 4.2.2 The EPPO as a Potential Example of a Vertical Mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Model Proposals and Explanatory Notes . . . . . . . . . . . . . . . . . . . 4.3.1 Methodology and Approach . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Scope of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2.1 Parallel Investigations and Proceedings . . . . . . . . 4.3.2.2 Criminal Investigations and Proceedings Stricto Sensu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Study on Viability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3.1 Inability of Unifying Grounds for Claiming Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3.2 Inability of Models Based on Applying Foreign Substantive Criminal Law . . . . . . . . . . . . . . . . . . 4.3.3.3 Improving Information Exchange as a Mandatory Previous Action . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . De Lege Ferenda Proposals on Settlement of Conflicts of Criminal Jurisdiction: Model A—Horizontal Approach . . . . . . . . . . . . . . . . . . 5.1 General Aspects and Explanation . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Action 1: Replacing Framework Decision 2009/948/JHA . . . . . . . 5.2.1 Legal Basis and Proper EU Legal Instrument . . . . . . . . . . . 5.2.2 Subject Matter and Scope . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 Deadlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.5 Procedural Effects in National Criminal Proceedings . . . . . 5.2.6 Connecting Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.7 Final Decision and Agreement . . . . . . . . . . . . . . . . . . . . . 5.3 Action 2: New Instrument on Transfer of Criminal Proceedings . . . 5.3.1 Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Legal Basis and Proper EU Legal Instrument . . . . . . . . . . . 5.3.3 Subject Matter and Scope . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.4 Waiving or Discontinuing Proceedings . . . . . . . . . . . . . . . 5.3.5 Conditions for Requesting a Transfer . . . . . . . . . . . . . . . . 5.3.6 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.7 Procedural Effects in National Criminal Proceedings . . . . . 5.3.8 Grounds for Refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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87 87 89 89 91 93 93 94 95 96 100 100 103 104 107 108 109 109 109 109 111 112 114 116 117 121 122 122 124 125 126 127 128 130 133

xiv

Contents

5.4

The Role of Eurojust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 Role in the Proposed Instruments on Prevention and Settlement of Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Powers Granted in Eurojust’s Regulation . . . . . . . . . . . . . . 5.5 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.1 National Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Supranational Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

De Lege Ferenda Proposals on Settlement of Conflicts of Criminal Jurisdiction: Model B—Vertical Approach . . . . . . . . . . . . . . . . . . . . 6.1 General Aspects and Explanation . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Action 1: Replacing Framework Decision 2009/948/JHA . . . . . . . 6.2.1 Legal Basis and Proper EU Legal Instrument . . . . . . . . . . . 6.2.2 Subject Matter and Scope . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.3 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.3.1 Competence and Locus Standi . . . . . . . . . . . . . . 6.2.3.2 Stage of Proceedings and Momentum . . . . . . . . . 6.2.3.3 Referral Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.4 Deadlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.5 Procedural Effects in National Criminal Proceedings . . . . . 6.2.6 Connecting Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Action 2: New Instrument on Transfer of Criminal Proceedings . . . 6.3.1 Rationale, Legal Basis and Scope . . . . . . . . . . . . . . . . . . . 6.3.2 Conditions for Requesting a Transfer . . . . . . . . . . . . . . . . 6.3.3 Grounds for Refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 The Role of Eurojust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 Eurojust’s Binding Decision: Rationale and Legal Basis . . . 6.4.2 Eurojust Assistance in the Proposed Instrument on Settlement of Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.3 Powers Granted in Eurojust’s Regulation . . . . . . . . . . . . . . 6.5 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.1 Supranational Judicial Control of the Decision: Rationale and Legal Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.2 Remedies Available According to Current EU Primary Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.3 Judicial Review Models in Practice and Other Academic Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.4 Supranational Judicial Review: Proposal According to De Lege Lata System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.5 Supranational Judicial Review: Specialized Court Pursuant to Art. 257 TFEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

134 134 136 138 138 140 140 142 143 143 144 144 144 145 146 149 150 154 155 156 158 158 159 159 159 159 163 164 166 166 168 172 174 175 178 179

Contents

xv

Horizontal Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Action 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Horizontal Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Action 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Vertical Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Action 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Vertical Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Action 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

Abbreviations

AA.VV. AAN AAP ACHR AFSJ AN CFREU CISA CJEU COE DOI EASO EAW ECHR ECRIS EDPS EIO EPPO ERA FJ ICC ICCPR JHA JIT LECrim LO LOPJ OJ PIF

Various Authors Order of the National High Court Order of the Audiencia Provincial American Convention on Human Rights Area of Freedom, Security and Justice National High Court Charter of Fundamental Rights of the European Union Convention implementing the Schengen Agreement Court of Justice of the European Union Council of Europe Digital Object Identifier European Asylum Support Office European Arrest Warrant European Convention on Human Rights European Criminal Records Information System European Data Protection Supervisor European Investigation Order European Public Prosecutor’s Office Academy of European Law Legal ground (Spanish case law) International Criminal Court International Covenant on Civil and Political Rights Justice and Home Affairs Joint Investigation Team Spanish Criminal Procedure Act Organic Act Organic Act on the Judiciary Official Journal Crimes against the financial interests of the European Union

xvii

xviii

SIENA STC StGB STS TC TEU TFEU TS UN

Abbreviations

Secure Information Exchange Network Application Judgment of the Spanish Constitutional Court Strafgesetzbuch Judgment of the Spanish Supreme Court Spanish Constitutional Court Treaty on European Union Treaty on the Functioning of the European Union Spanish Supreme Court United Nations

Chapter 1

Jurisdiction and Conflicts of Criminal Jurisdiction Within the European Union

1.1

Introduction

Historically, judicial cooperation in criminal matters has been the response to the inherent constraints linked to the conception of criminal law as an expression of the sovereignty of the State over its own territory. The application of criminal law in the territory of the State to all persons within it, whatever their nationality, appears as an essential expression of sovereignty. Undoubtedly, it can be affirmed that where there is sovereignty there is ius puniendi.1 The strict application of the forum delicti commissi criterion and the territorial delimitation of ius puniendi prevented the effective prosecution of crimes with crossborder elements. Being the application of criminal law (substantive and procedural) a matter of public order, the need inevitably arose among States to relate to and cooperate with each other at the international level in order to respond to these situations and thus avoid impunity. As a first reaction, States began to establish precarious bilateral cooperation mechanisms to respond to requests for judicial assistance from other States, often in the framework of their foreign policy relations. The functioning of these mechanisms, mainly focused on extradition and based, among others, on the principle of reciprocity, depended to a large extent on the health of current and historical diplomatic relations between the countries involved. This in practice was a burden to the achievement of real and effective cooperation.2 The growing international interdependence and the improving mobility and communications led to an emerging consciousness that certain particularly serious forms of crime were transnational in nature, challenging the sovereignty-based criminal jurisdiction on which the international order was then built. That was the 1 2

Quintero Olivares (2015), p. 148. Arnáiz Serrano (2013).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 A. Hernández López, Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU, Comparative, European and International Criminal Justice 3, https://doi.org/10.1007/978-3-031-15691-5_1

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Jurisdiction and Conflicts of Criminal Jurisdiction Within the European Union

case of terrorism due to the increasing number of terrorist attacks perpetrated during the interwar period. As a response to these events, in the 1920s and 1930s, several bilateral extradition and judicial assistance treaties were established3 and/or were revised to exclude certain terrorism acts from the category of political offences.4 Furthermore, under the auspice of the League of Nations, two different multilateral conventions were drafted to fight against terrorism:5 the Convention for the prevention and punishment of terrorism and the Convention for the creation of an international criminal court,6 although neither of these conventions entered into force. The idea that this mainly national-based approach should be overcome began to take shape as a result of the rise of the phenomenon of cross-border crime, especially in the second half of the twentieth century, when this problem substantially gained importance. Within the UN, the first instrument dedicated to the international fight against the crime of genocide was created.7 Within the Council of Europe, the States parties began to conclude regional multilateral conventions on judicial cooperation in criminal matters. Thus, in 1957, the European Convention on Extradition was signed,8 and 2 years later, in 1959, the European Convention on Mutual Assistance in Criminal Matters was endorsed.9 Both were extremely successful international cooperation instruments that have been ratified by the 47 States Parties of the Council of Europe. Subsequently, more specific instruments were created under the umbrella of this international organisation, such as the 1972 European Convention on the Transfer of Proceedings in Criminal Matters,10 which, however, did not enjoy the same degree of acceptance. In the European Union, the huge legal and political advancement achieved throughout the integration process and the consequent consolidation of the four fundamental freedoms of movement—goods, persons, services and capital—within the territory of the Member States, have led to the creation and development of a European Area of Freedom, Security and Justice (AFSJ), in which the suppression of internal border controls, after the integration of the Schengen acquis into Union

3

E.g. Convention relating to Extradition and Judicial Assistance in Criminal Matters (Stockholm, 22 October 1928). 4 E.g. Art. 3(e) Convention on Extradition (Inter-American) (Montevideo, 27 December 1933). 5 On this issue, see Saul (2006), pp. 78–102. 6 See Proceedings of the International Conference on the Repression of Terrorism (Geneva, 1–16 November 1937). 7 International Convention on the Prevention and Punishment of the Crime of Genocide (New York, 9 December 1948. In force since 12 January 1951). 8 European Convention on Extradition (Paris, 13 December 1957. In force since 18 April 1960). 9 European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 20 April 1959. In force since 12 June 1962), ratified in its original wording by all the Member States of the Council of Europe and which, together with its two additional protocols (17 March 1978 and 8 November 2001), continues to be an international instrument of reference as regards judicial cooperation and assistance in criminal matters. For an in-depth study, see García Moreno (2013), pp. 111–166. 10 European Convention on the Transfer of Proceedings in Criminal Matters (Strasbourg, 15 May 1972. In force since 30 March 1978).

1.1

Introduction

3

law,11 constitutes one of its main axes and an essential part of the proper exercise of the fundamental, civil, economic and social rights granted to its citizens and residents.12 Fostering free mobility, which undoubtedly benefits European citizens as a whole from a socio-economic perspective, in turn entails greater complexity in social, personal and legal relations between the intervening subjects. This has led to the emergence of new effects and issues that affect all spheres of law, including the field of procedural and substantive criminal law,13 which cannot be tackled by the Member States acting individually. From a criminal law enforcement perspective, the increasing mobility of persons has heightened the risk of transnational crime. Albeit it is not easy to provide a universal definition of transnational crime,14 we can regard as such those crimes committed or affecting the territory of more than one State. This phenomenon has traditionally been associated with serious organised crime15 but, as a result of the process of abolishing internal border controls and simplifying mobility, it is now a relatively common and growing problem in Europe.16 Furthermore, the continuous evolution of the information society and successive technological developments have led to the emergence and subsequent proliferation of new forms of criminality, such as cybercrime, which, due to the immaterial nature of the elements involved, often transcend the classical limitations represented by physical borders, involving at the same time the jurisdictions of a plurality of Member States. The rising concern about the impact of this phenomenon on our society is shown by the gradual increase in the number of criminal offences related to this kind of crime and the regulation of new investigative measures to combat it,17 as well as by the increase in the number of specific instruments adopted, both at international and national level,18 to counter

11 Protocol No 19 annexed to the Treaty of Amsterdam on the Schengen acquis integrated into the framework of the European Union (OJ C 2002 of 7 June 2016). 12 Art. 45 CFREU. 13 See Sieber (2010), pp. 155–157. 14 On this issue, see Zúñiga Rodríguez (2016), pp. 62–114. 15 Böse et al. (2013), p. 15. 16 As a guideline, the number of cases registered at Eurojust has increased from 202 in 2002 to 2306 in 2016, an increase of more than 1000%. Of course, there are other factors to be taken into account when interpreting this statistic correctly, such as the enlargement of the EU during these years or the progressive awareness of national authorities of the services offered by Eurojust. Data taken from Eurojust Annual Report 2016, DOI:10.2812/474125, p. 10. 17 E.g. in Spain, the reform of the LECrim made by Organic Law 13/2015, of 5 October, amending the Criminal Procedure Act to strengthen procedural guarantees and the regulation of technological investigation measures (OJ n. 239 of 6 October 2015). 18 These developments have taken place at both the normative and operational levels. At the normative level, the Council of Europe Convention on Cybercrime (Budapest, 23 November 2001), Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography (OJ L 335, 17 December 2011) and Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems (OJ L 218, 14 August 2013). At

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Jurisdiction and Conflicts of Criminal Jurisdiction Within the European Union

it. In short, cross-border crime usually entails that several States exert their jurisdiction over the same criminal acts, which makes it difficult to investigate and prosecute them in an effective manner. To address these difficulties and avoid the potential adverse effects of such situations, the establishment and consolidation of the AFSJ, from its origins with the Treaty of Amsterdam19 and the conclusions of the Tampere European Council,20 to its enormous step forward after the Treaty of Lisbon,21 has based its development on the strengthening of judicial cooperation in criminal matters between Member States based on the application of the principle of mutual recognition and its logical consequence, mutual trust,22 as the cornerstone of the Union’s instruments and policies in this area. This implies that the national authorities must give judicial decisions coming from another Member State a value equivalent to that given to decisions given within their own State, through a double presumption that the rules of the other Member State are adequate and consistent and, on the other hand, that they have been correctly applied.23 This new approach led to the adoption of the first mutual recognition instrument in this area, the European Arrest Warrant (EAW),24 which went beyond the classic extradition regime and deepened the process of institutionalising judicial cooperation in criminal matters in the Union. This institutionalisation had already started with the creation of organic cooperation actions such as the liaison magistrates and the European Judicial Network (EJN). In this sense, the establishment of Eurojust meant an enormous leap forward. This European agency has contributed, in a transcendental way, to the objective of achieving a better understanding of the different national judicial systems, proving to be a key element without which the future development of the European Judicial Area in the field of criminal justice cannot be understood. However, for a climate of mutual trust to exist, it is essential that the different national legal systems guarantee a minimum standard of rights and procedural guarantees for the subjects in criminal proceedings—especially in the case of the the operational and intelligence level, new highly specialised units have been developed at European level, such as the European Cybercrime Centre (EC3), which reports to Europol, or the Joint Cybercrime action taskforce (J-CAT). At the national level, Spain has Judicial Police brigades specialised in cybercrime, such as the Technological Investigation Brigade (BIT) of the National Police Force or the Telematic Crime Group (GDT) of the Civil Guard, as well as prosecutors specialising in cybercrime, a specialisation officially created by Instruction 2/2011, of the State Prosecutor’s Office, of 11 October, on the Cybercrime Prosecutor and the cybercrime sections of the Public Prosecutor’s Offices. 19 OJ C 340 of 10 November 1997. 20 “Towards a Union of Freedom, Security and Justice”, conclusions of the European Council meeting in Tampere on 15 and 16 October 1999. 21 OJ C 306 of 17 December 2007. 22 Calderón Cuadrado (2012), pp. 69–141. 23 Aranguena Fanego (2012), p. 1189. 24 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190 of 18 July 2002), as amended by Council Framework Decision 2009/299/JHA of 26 February (OJ L 81 of 27 March 2009).

1.1

Introduction

5

suspect or accused person—which allows a system of cooperation based on this principle to be fully operational.25 This classic dichotomy between the “security” and “freedom” sides of the AFSJ can be seen in the current wording of Art. 3 (2) TEU, which establishes that “the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured (. . .)”, to immediately recall that this area must be developed “(. . .) in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime”. Therefore, the Union’s action in this area must be aimed at preventing the impunity of criminals, without neglecting, at the same time, respect for citizens’ rights and freedoms.26 The continuous and historically uneven development of the two strands of the AFSJ, often conditioned by specific geopolitical moments and external factors outside the strictly legal sphere,27 has succeeded in making Member States aware of the need to move towards a common criminal justice policy, generating an incipient conception of “European criminal law”.28 Following the entry into force of the Treaty of Lisbon and the new possibilities it offers in this area, 29 numerous advances have been observed. From the point of view of substantive criminal law, the EU has deepened in the sectoral harmonisation process by means of Art. 83 TFEU. But above all else, the most significant advances have been made from the procedural criminal law perspective. In this field, the EU has adopted directives aimed at strengthening procedural rights and safeguards in criminal proceedings (Stockholm Programme roadmap), state-of-the-art mutual recognition instruments such as the European Investigation Order (EIO). More recently, the European Public Prosecutor’s Office (EPPO) has been established as an independent EU body granted with vertical powers for investigating and bringing to judgment PIF offenders, a long-awaited milestone in the process of institutionalisation of EU criminal law that has finally become real through enhanced cooperation. Precisely, the start of operations of the EPPO on 1 June 2021 already gives us a first insight into

25

Martín Diz (2008), p. 47; Vidal Fernández (2010), p. 186. In this sense, see Jimeno Bulnes (2010). 27 To cite one example, the European Arrest Warrant, the flagship instrument of mutual recognition in criminal matters between EU Member States, was adopted only 3 months after the terrorist attacks of 11 September 2001 in New York, complying with the roadmap of the action plan proposed by the extraordinary European Council of 21 September 2001, whose main objective was to analyse the international situation after the attacks. However, it is true that the draft European arrest warrant was already largely completed before the attacks, and that the publication of the proposal for a Framework Decision was only 1 week ahead of the official forecasts. Fonseca Morillo (2003), p. 71. 28 However, as stated by Ambos, the term “European criminal law” in the strict sense is restricted to a few areas specifically defined in the treaties, in particular the protection of the Union’s financial interests [Art. 83(1) and Art. 325 TFEU]. For the rest of the areas, at EU level, European criminal law is a sort of generic term, leading or aiming at a generalised harmonisation of national criminal procedural law. See Ambos (2017), p. 64. 29 For an overview, see Kostoris (2018), pp. 3–60. 26

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Jurisdiction and Conflicts of Criminal Jurisdiction Within the European Union

the actual impact that this new actor shall have on the future development of the European criminal justice system. However, despite the numerous advances that have been made to date, the Union has not yet managed to define and establish a homogeneous exercise of ius puniendi by all the Member States, nor to establish an autonomous European criminal jurisdiction applicable consistently and with uniform criteria to punishable crossborder acts committed throughout the vast territory that the Union now comprises. Consequently, the attribution of criminal jurisdiction remains an exclusive competence of each Member State that can freely determine and set the limits of its exercise. These limits are not usually restricted to the exercise of jurisdiction over acts committed on the national territory of each State, but often extended beyond national borders by means of extraterritorial jurisdiction criteria. Bearing these circumstances in mind, within a legal framework in which the EU does not have exclusive competence nor—as we will defend in this work—sufficient legal basis among the shared competences to establish its own criminal jurisdiction,30 each EU Member State continues to be fully sovereign in this area and solely responsible for establishing the limits of its own criminal jurisdiction,31 constituting one of the last strongholds of national sovereignty in a context of strengthened European integration. As a result, the different national authorities and the citizens of the Member States have to coexist with a dual reality: the existence of an area free of internal borders in the terms expressed in Art. 3(2) TEU, but in which twenty-seven different criminal justice systems persist, each of them counting with its own rules on jurisdiction and its own procedural and substantive criminal law. This intermediate situation, between national and supranational spheres, corresponds to what the European Union still represents today as a sui generis international organisation despite the current high degree of integration, and it is clearly expressed in the wording of Art. 67(1) TFEU: “The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States”. The absence of harmonised rules at the EU level that delimit the exercise of criminal jurisdiction arise situations in which two or more Member States can exercise their criminal jurisdiction over the same criminal acts allegedly committed by the same person, which can generate a situation of conflict with serious procedural consequences. This situation of “overlapping” in the exercise of jurisdiction is what the doctrine calls a positive conflict of criminal jurisdiction and can lead to multiple punishment of the offender for the same acts, a result that is prohibited within the EU by virtue of the transnational application of the ne bis in idem principle enshrined in Art. 54 CISA and Art. 50 CFREU.

30

Except to a limited extent with regard to PIF offences and the competence of the European Public Prosecutor’s Office. On this issue, see Ambos (2017), pp. 68–76. 31 Vervaele (2013), p. 184.

1.1

Introduction

7

In order to address this problem, Member States have gradually put in place alternative solutions to prevent and resolve the growing number of conflicts of criminal jurisdiction in the Union. Following the amendments made by the Treaty of Amsterdam and the Treaty of Nice,32 only the preventive dimension of the conflict was granted by the primary law.33 At that time, the EU action in this area was initially limited to recognising a limited role to a European body, Eurojust, to act upon the request of a national authority involved in a conflict. Subsequently, the Union’s action in the conflict resolution dimension was strengthened through the establishment, by means of a Framework Decision,34 of a conflict prevention and resolution procedure based on mutual consultations and the direct exchange of information between the national authorities involved, along with the recognition of a reinforced mediating role for Eurojust in conflict resolution. Following the entry into force of the Lisbon Treaty, the primary law now has a double reference to this issue: Article 82(1) TFEU, which generically establishes the mandate to adopt measures for the prevention and resolution of conflicts of jurisdiction; and Article 85(1)(c) TFEU, which expressly recognises a role for Eurojust in their resolution. Despite having a new legal basis in the Treaties, no act of secondary law had been adopted or proposed by the Commission on the basis of either of these two provisions yet. There was only a proposal for a Regulation for the reform of Eurojust, closely related to the proposal for a Regulation establishing a European Public Prosecutor’s Office, which subsequently materialised in Regulation (EU) 2018/1727 on the European Union Agency for Criminal Judicial Cooperation (Eurojust),35 but which does not expressly use the legal basis of Article 85(1) (c) TFEU or its wide-ranging possibilities. Notwithstanding, in 2019 the Romanian presidency of the Council urged to consider a legislative proposal on transfer of proceedings and, more recently, the Commission has launched a public consultation on the initiative.36 It is in this context of normative gap and renewed legislative interest that the scientific interest of this book arises. This work is therefore based on the premise that the instruments and procedures dedicated to the prevention and resolution of conflicts of jurisdiction and transfer of criminal proceedings currently in force in the EU do not guarantee their effective resolution nor do they comply with the minimum requirements demanded from the point of view of due process, which is why they must be superseded by a new model in accordance with the new possibilities offered by post-Lisbon primary law. The recent application of the new Eurojust Regulation, whose functions in this matter are 32

OJ C 80 of 10 March 2001. Art. 3.1 d) TEU-Nice. 34 Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (OJ L 328 of 15 December 2009). 35 Regulation (EU) 2018/1727 (OJ L 295 of 21 November 2018). English version in accordance with the corrigendum published in OJ L 46 of 18 February 2019. 36 See https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13097-Effective-jus tice-common-conditions-for-transferring-criminal-proceedings-between-EU-countries/public-con sultation_en (date of access: December 2021). 33

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Jurisdiction and Conflicts of Criminal Jurisdiction Within the European Union

decisive, together with the absence of legislative text proposals of the Union expressly dedicated to conflicts of jurisdiction or transfer of criminal proceedings, pose a scenario where it is pertinent and relevant to analyse the main causes of the problem, to critically evaluate the instruments currently available to combat it, and to determine what changes should be introduced in the near future to achieve an integral improvement of the existing system. In this sense, the aim of this book is to propose different comprehensive models de lege ferenda for the prevention and resolution of conflicts of jurisdiction and transfer of criminal proceedings, which explore the different possibilities offered by the primary law currently in force and incite an academic and legislative debate on the need to review the Union’s response to this issue.

1.2

Criminal Jurisdiction and ius puniendi

Although it is not the purpose of this work to reflect on the implications of the institution of jurisdiction, one of the three pillars of the procedural discipline, we do need to establish, as a prior step to dealing with the problem of conflicts of criminal jurisdiction between Member States, a concept of criminal jurisdiction for the purposes of this work. Beyond its etymological meaning, which does little today to determine what jurisdiction is, many different doctrinal concepts have been coined throughout history to define what criminal jurisdiction is and what its exercise consists of. 37 Chiovenda established that “criminal jurisdiction consists in the substitution of the activity of the jurisdictional bodies to the administrative bodies for the affirmation of the existence of the will of the law that the defendant be punished”.38 For his part, Calamandrei stated that it was not possible to give a valid definition of jurisdiction for all times and places, being at that time “the power or function (called jurisdictional or judicial) that the State, when it administers justice, exercises in the proceedings through its judicial bodies”.39 Serra Domínguez, after a detailed analysis of the classical studies on the concept of jurisdiction,40 defined this institution as “the irrevocable determination of the law in the specific case, followed, where appropriate, by its practical implementation”.41 Other authors defend that the concept of jurisdiction must be given according to the historical and national context of each Member State. In Spain, this approach has been proposed by Montero Aroca. Based on the provisions of the Spanish Constitution and law, for this author, jurisdiction is “the power stemming from the 37

For a historical-doctrinal and comparative law study on concept of jurisdiction, see Allen (2019). Chiovenda (1922), p. 380. 39 Calamandrei (1962), p. 114. 40 Serra Domínguez (2008), pp. 18–52. 41 Ibid., p. 53. 38

1.2

Criminal Jurisdiction and ius puniendi

9

sovereignty of the State, exercised exclusively by the judges and courts, made up of independent judges and magistrates, to guarantee and protect the rights of individuals in the specific case, judging irrevocably and executing what has been judged”.42 At the international level, Anglo-Saxon doctrine has been discussing the different manifestations or categories of criminal jurisdiction, especially in relation to its possible extraterritorial application. The American Law Institute initially distinguished between two different manifestations of jurisdiction: jurisdiction to prescribe and jurisdiction to enforce.43 This first approach was later revised,44 and a distinction is now made between three different manifestations of national criminal jurisdiction, as well as between the rules of domestic law and rules of international law:45 1. Jurisdiction to prescribe: the authority of a State to make law applicable to persons, property, or conducts. This kind of jurisdiction can be identified with a State’s ability to enforce its substantive criminal law.46 2. Jurisdiction to adjudicate: the authority of a State to apply law and bring persons, property and assets before its national courts through the process. This is a purely procedural manifestation of jurisdiction. 3. Jurisdiction to enforce: State’s ability to exercise its power and compel compliance—and therefore, punish non-compliance—with law. It is also related to procedural aspects of the exercise of jurisdiction. Bearing in mind all the above doctrinal references on the concept of jurisdiction, for the specific purposes of this work we will define criminal jurisdiction as the power of a State, exercised through its judges and courts, which allows it to exercise its ius puniendi over persons and criminal acts. In this sense, a State has jurisdiction over specific acts attributed to a given person whenever, in accordance with its national

42

Montero Aroca (2018), p. 65. Indeed, in Spain, the exercise of jurisdictional power, judging and enforcing what has been judged, is recognised in our Constitution to the Courts and Tribunals determined by law [Art. 117(3) Spanish constitution], recognising their indivisible nature by virtue of the principle of jurisdictional unity [Art. 117.5 CE]. These constitutional precepts are reflected in Articles 2 and 3 LOPJ. In turn, Article 4 LOPJ establishes a first approximation of the extension of Spanish jurisdiction, stating that Spanish jurisdiction extends “to all persons, to all matters and to the entire Spanish territory, in the manner established in the Constitution and in the laws”. Therefore, we can conclude that the main characteristics of jurisdiction from the Spanish perspective are that it is a public function, attributed exclusively to judges and courts determined by law, of a unique and indivisible nature, and that it extends to all persons and matters throughout the territory in which Spain exercises its sovereignty. 43 American Law Institute (1965), § 6. On this issue, Hixson (1988), p. 130. 44 American Law Institute (1987), §401. Recently, a new revision affecting jurisdiction has been published, American Law Institute (2018), §§ 401–464. On the last revision, see Dodge (20162017), pp. 143–170. 45 A thorough explanation of these different manifestations can be seen in Ryngaert (2015), pp. 8–10. 46 Böse et al. (2014), p. 23.

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Jurisdiction and Conflicts of Criminal Jurisdiction Within the European Union

law or international treaties, it may conduct, even potentially, a criminal investigation and/or prosecution.

1.3 1.3.1

Grounds for Claiming Jurisdiction Previous Considerations

Once affirmed that the defining of criminal jurisdiction is a national prerogative which is conventionally recognized by public international law and closely related to the very essence of the sovereignty of States, it is essential for an accurate study of the problem of conflicts of jurisdiction to analyze which criteria are commonly used to determine the exercise of criminal jurisdiction. In this regard, each Member State uses different criteria for the attribution of criminal jurisdiction, the application of which to cross-border cases often results in jurisdiction being assigned concurrently in favour of several States. On this premise, the problem resides in the fact that, since the exercise of jurisdiction is a national prerogative that admits different criteria and interpretations regarding its determination, the rise in cross-border situations is increasingly leading to the concurrence of several attribution criteria recognized by different States; this makes the pre-determination of jurisdiction extremely difficult in practice. As a starting point, we must affirm that States can freely use this power of determination, in such a way that they exclusively can unilaterally determine the extension and means by which the exercise of their jurisdiction is attributed. 47 However, that a State should be completely free to establish what are the limits of its own criminal jurisdiction and, therefore, the criminal acts that its authorities are responsible for investigating and prosecuting, is not synonymous with this power having, in practice, absolute erga omnes effectiveness. On the contrary, for this attribution to be total and to take effect, there should be both the will and predisposition of other States to positively recognize such allocation of jurisdiction E.g. State A may decide to extend its jurisdiction to acts committed by citizens who are in State B, these having been committed in the territory and against the interests of the latter. However, in practice this unilateral attribution of jurisdiction invoked by State A will be

47

In this sense, the Permanent Court of International Justice in the S.S. Lotus case (1927) pronounced in the following terms: “Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable”. Cf. S.S. Lotus (France v. Turkey), 7 September 1927, Publications of the Permanent Court of International Justice, Series. A, N. 10, Leiden: A.W. Sijthoff’s Publishing Company. Sijthoff’s Publishing Company, 1927.

1.3 Grounds for Claiming Jurisdiction

11

useless, if State B does not, in turn, recognize A’s legitimacy to investigate and prosecute such acts.

Therefore, the exorbitant attribution of the exercise of criminal justice—especially in terms of acts committed abroad—serves no purpose if there is no consent from the other States involved for such legitimacy to be recognized and take place effectively (e.g. agreeing to the extradition of the requested person). It is, therefore, an issue intrinsically linked to international relations, both reciprocal and multilateral, existing between States, and subject to principles which are globally recognized by the international community. As a result, States frequently use similar criteria for assigning criminal justice, which guarantees them, on the one hand, maximum possible legitimacy and acceptance by the other States, while, on the other hand, they are assured of the effective application of their ius puniendi regarding application of the principle of reciprocity. These criteria, commonly called the principles of attribution of jurisdiction, are recognized in the EU in the different national legal systems of the Member States, albeit by means of very different formulas. In the following sections we will systematize, from the point of view of comparative law, the criteria which are traditionally recognized by the Member States of the European Union to attribute the exercise of their criminal jurisdiction.

1.3.2

Principle of Territoriality

There is no doubt that the most widespread and conventionally accepted criterion of attribution is that based on the principle of territoriality. In the words of Ambos, 48 this principle “binds the place of the events and, consequently, assigns, to any State the ius puniendi over all acts committed in the territory over which it exercises its sovereignty.” On this basis, each State is competent to exercise its jurisdiction over those criminal acts committed within its own territory, as understood in the broad sense; this includes ships, aircraft and other premises and vehicles under the national flag—in the latter cases reference is to the principle of the flag doctrine.49 In Spain, this principle is set out in Article 8(1) of the Civil Code and, in particular, enshrined in Article 23(1) LOPJ.

48

Ambos (2006), p. 84. That a doctrinal sector in some Member States has been considering it as an autonomous principle, graphically summarized by the expression “ships are not floating islands” pointed out by Wolswijk (2013), p. 336. However, we believe that this principle should be subsumed and systematised as one of the manifestations of the principle of territoriality and not as an independent principle, as there are numerous rules of public international law that consider ships and aircraft to be state territory—in the same way as happens in the case of diplomatic soil, such as embassies and consulates abroad. We believe that to affirm the contrary would force us to classify this principle as another criterion of extraterritorial attribution, and not as a territorial principle, compelling us to a completely different systemisation, which we do not believe to be correct. 49

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The main advantage that, a priori, involves the application of this principle as a general criterion for attributing jurisdiction, lies in the correlation between national territory and the area in which a State has the power to exercise its sovereignty, thereby implying a quasi automatic international recognition of the exercise of this power.50 This in turn makes it possible to easily determine which criminal acts may and may not be dealt with by each national criminal justice system. A prima facie application of this principle would lead us to determine that, if a crime is committed in the territory of State A, the latter will have the power of investigation and appraisal and not the jurisdiction of States B, C or D. This principle is, therefore, that of attribution of jurisdiction par excellence, and is recognized by all States both in the European Union and in the rest of the world. However, the apparent simplicity with which, by means of this principle, the competent jurisdiction could be determined, is not the case in practice. When applying the principle of territoriality to cross-border scenarios, there may be different interpretations of what should be understood by the place where the offences were committed. E.g. in a crime of murder using a parcel bomb sent from State A to State B, we are faced with the dilemma that the crime has not been committed in its entirety in a single jurisdiction, since the territory where the action has commenced—the sending of the parcel bomb—is not the same as that in which the principal illegal outcome—the unlawful death of a person—has finally occurred. With this assumption, both State A and State B may decide to exercise their criminal jurisdiction in light of the principle of territoriality, since both can argue that the crime has been committed, albeit partially, within their territory. This dilemma, usually raised in the substantive and procedural study to determine the application of criminal law in space, is nothing more than the observation of the possible coexistence of different theories for the interpretation of the principle of territoriality. In the above-mentioned scenario, in order to exercise its jurisdiction, State A has interpreted the principle based on the so-called theory of activity, which takes as a point of reference the place where the individual performs the action or omission deemed criminal; while State B has used as a reference the interpretation of this principle according to the theory of the result, which takes into account the place where the illegal effects of the action or omission were felt. As a consequence, the two States are applying the same principle of attribution—territoriality—albeit in accordance with a divergent interpretation of the forum delicti commissi. This means that both can be simultaneously competent to deal with the same crime committed by the same person; in other words, they are laying the foundations for the beginning of a potential positive conflict of criminal jurisdiction. If we accept without further discussion the coexistence of these two interpretations, we should consider what would happen if we invert the previous example. In other words, what would happen if State A interpreted the principle of territoriality

50

Derived, inter alia, from the principles of territorial integrity and non-intervention recognised by international law and enshrined by the UN respectively in Articles 2(4) and 2(7) of the Charter of the United Nations, 1 UNTS XVI (San Francisco, 26 June 1945. In force since 24 October 1945).

1.3

Grounds for Claiming Jurisdiction

13

based on the result theory, while State B did the same applying the activity theory? In our hypothetical example, the consequence of automatically applying these theories would be that neither of the two criminal jurisdictions would have the authority to prosecute and appraise the criminal act or, what amounts to the same, there would be a negative conflict of jurisdiction and, therefore, the crime would go unpunished51 due to lack or defect of jurisdiction in both States. Logically, this problem no longer exists, since both theories –activity and result– coexist with a third: the so-called ubiquity theory, which combines the previous two and considers that the crime is committed in all the jurisdictions where some part of this has occurred. The latter interpretation of the principle of territoriality, which is the one that has been used and incorporated mainly by the different European national legislations—including that of Spain,52 can be considered part of international criminal law among European States.53 Despite the fact that the ubiquity theory resolves the possible legal vacuum and loophole in criminal impunity with the rigid application of the theories of activity and result, thus preventing the subsequent appearance of negative conflicts of jurisdiction, we must state that it does not solve, but rather aggravates, the problem of positive conflicts of criminal jurisdiction. We say that it aggravates this because such a broad interpretation when determining the place where a punishable act has been committed recognizes, de facto, the concurrent remit of all the jurisdictions in whose territory any of the elements of iter criminis has been committed. Therefore, since the commission of a transnational crime is usually one of the presuppositions creating a situation of conflicting criminal jurisdiction among Member States, systematically applying the theory of ubiquity eventually makes it useless to resort to the principle of territoriality as a criterion of differentiating attribution for its resolution.

51

Orbaneja (1947), p. 380, expressed this reflection in similar terms in his analysis of Art. 335 of the LOPJ of 1870, which at the time established the theory of the result in Spain for crimes started to be committed in Spain and consummated or frustrated in foreign countries. For this author, if the foreign country in which the result is produced adopts the activity theory, this would inevitably lead to impunity for the act. 52 See Agreement of the non-jurisdictional Plenary of Chamber II of the Supreme Court of 3 February 2005, which determined on the principle of ubiquity that “The crime is committed in all jurisdictions in which some element of the type has been carried out. Consequently, the judge in any of them who first initiated the proceedings will in principle be competent to investigate the case”. Criterion followed continuously by our courts Cf. STS n. 341/2005, of 17 March 2005, ES: TS:2005:1702; STS n. 1/2008, of 23 January 2008, ES:TS:2008:128; STS n. 788/2009, of 12 January 2009, ES:TS:2008:128; STS n. 788/2009, of 12 January 2009, ES:TS:2008:128; STS n. 788/2009, of 12 January 2009, ES:TS:2008:128; STS n. 788/2009, of 12 July 2009, ES:TS:2009: 4882; STS n. 522/2011, of 1 June 2011, ES:TS:2011:4330; STS n. 57/2015, of 4 February 2016, ES:TS:2016:186. 53 This interpretation has been laid down by the Spanish Supreme Court, cfr., STS n. 1/2008, cit. FJ 2°.

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1.3.3

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Extraterritorial Principles for Claiming Jurisdiction

Alongside the principle of territoriality previously analyzed, States have traditionally established criteria for attributing jurisdiction of an extraterritorial nature. This allows them, on the basis of different connecting factors, to extend their criminal jurisdiction beyond their national borders. Applying these criteria may lead to the assumption of jurisdiction by national courts with respect to crimes committed in the territory of another sovereign State; this in practice would imply interference in the natural scope of application of the ius puniendi based on the territory of that State. For this reason, these extraterritorial attribution criteria and their scope are largely conditioned by the rules, principles and limits recognized by public international law. This in turn leads to recognition of the different types of extraterritorial principles being once again based on the reciprocal acknowledgement by the other States that this attribution is legitimate. Unlike the principle of territoriality, the use and recognition of these extraterritorial attribution criteria cannot be considered uniform by the national laws of the Member States, as the validity of the different internationally recognized principles is quite diverse. We will now go on to systematize the criteria that, from the point of view of comparative law, are mostly used by the national legal systems of our neighboring Member States.

1.3.3.1

Principle of Personality

The attribution of jurisdiction based on the principle of personality, also known as the principle of nationality, implies, in its different categories—active and passive— considering the nationality of the perpetrator or victim of the crime, and occasionally even the place of residence, as a criterion of extraterritorial attribution which is valid for determining criminal jurisdiction. Active Personality Principle The principle of active personality takes as a reference the nationality of the perpetrator of the criminal act, thus extending the jurisdiction of a State with respect to crimes committed by its own nationals, even if the crime in its entirety has been committed on foreign territory. The historical-legal justification for the existence of this principle is based on two main arguments: in the first place, the classic rationale regarding the duty of loyalty towards their State which is expected of nationals. This means that even if a criminal act is committed abroad, the perpetrator cannot abstain from due respect for and submission to their own national criminal law. Secondly, a more modern argument, basing the existence of this principle on interstate solidarity and reciprocal judicial assistance, that is, the need to counterbalance the protection that the State gives its own nationals when ius puniendi is applied by other States—e.g. the widespread international application of the rule of non-extradition of nationals. This translates into the need to establish compensatory provisions, in terms of international

1.3

Grounds for Claiming Jurisdiction

15

solidarity, that act as an intermediate formula resulting from the principle aut dedere aut iudicare, ensuring that at all times misconduct is punished, and thereby avoiding impunity for the crime. 54 The personality principle, in its active mode, may in turn have an absolute or limited scope. It is absolute when its application is not subject to any condition, either limiting or suspensory, which prevents it from being effective. Consequently, the national authorities of the State where this principle is used in its absolute format should always have the authority to investigate and prosecute, according to the provisions of their own substantive criminal law, the criminal acts committed by their nationals, regardless of the circumstances relating to where the offence took place. Let us imagine that a person who is a national of State A undergoes an abortion in State B, with abortion being criminalized in all its forms in the penal code of State A, but not in the substantive criminal law of State B. By virtue of extensively applying the principle of active personality in its absolute form, State A would always be empowered to criminally prosecute the conduct of its national, even when the alleged crime has been committed on foreign territory subject to a jurisdiction that does not consider the conduct punishable.

The absolute format of the principle of active personality necessarily implies entering into conflict with the jurisdiction and state sovereignty of other States based on the principle of territoriality. It entails an accentuated application of the national ius puniendi, the widespread use of which would be inapplicable in practice and would be inadmissible in view of the basic rules and principles of international law, since it would imply a breach of the principle of non-intervention.55 Hence, the recognition of this absolute form of the principle is nowadays scarcely justifiable, and therefore its practical acceptance and use are purely residual. However, we could find some examples or traces of the principle of active personality of an absolute nature in certain national legal systems of the Member States, for instance, the Netherlands. 56 In contrast, the limited form of the principle of active personality takes into consideration the concurrence of other factors, such as restrictions or exceptions, which prevent the exercise of jurisdiction based on the nationality in those circumstances. These exceptions may have their rationale in different legal issues or criminal policy reasons, such as the need to comply with the principle of dual criminality—in other words, the punishable conduct that is intended to be prosecuted should also be classified as a crime in the jurisdiction where the act was committed— the perpetrator should not have been convicted, acquitted or pardoned for the same acts in the other State—that is, the prohibition of ne bis in idem—there should be compliance with certain procedural requirements—such as the mandatory filing of a complaint before the national authorities—or other connecting factors in conjunction with the application of this principle should be considered.

54

Meyer (2013), p. 150. As argued by Ambos (2006), pp. 88–89. 56 See § 5.1 par. 1 Wetboek van Strafrecht in its wording prior to 1 July 2014. 55

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Returning to the previous example and applying the principle of passive personality of a limited nature, the national of State A who undergoes an abortion in State B, where the criminal law system does not criminalize this conduct, could not be prosecuted as the requirement of dual criminality is not fulfilled and, therefore, State A lacks jurisdiction according to the rules of its own legal system.

It is this limited form of the active personality principle, much more respectful of the rules of international law and the sovereignty of other states, which is currently recognised in most national legal systems in the EU, as is the case in Germany—§ 5 StGB—France—Art. 113(6) Code Pénal—Italy—Art. 9 § 1 Codice Penale—the Netherlands—§ 7(1) Wetboek van Strafrecht—or Portugal—Art. 5(e) Código Penal Português. In the case of Spain, this attribution criterion is explicitly recognized in Art. 23 (2) LOPJ, which extends Spanish jurisdiction, after commission of the criminal act, to those crimes committed outside national territory by Spaniards, nationals and those naturalized, on condition that three requirements are simultaneously met: namely, that the principle of dual criminality is observed, the prohibition of ne bis in idem is respected and a prior complaint is filed by the victim or the Public Prosecutor before the Spanish courts. The Passive Personality Principle The principle of personality, in its passive format, takes into consideration the nationality of the crime victim, allowing the extension of state jurisdiction to protect them from crimes committed against them abroad by both nationals and foreigners. This principle is by its nature closely related to the principle of protection which we will analyze in the next section. Certain authors consider it an extreme variant of the latter.57 Comparatively speaking, the passive side of the personality principle is not as widely recognized in the legal systems of the Member States as is the active variant. Thus, not all States recognize the validity of this principle and, if they do, its scope is usually extremely limited and restricted to very specific cases. As with the active personality principle, the passive form may be accepted differently in terms of extent or intensity. In the legal systems of some Member States its recognition is absolute: this is the case of France—Art. 113(7) Code Pénal—or this may be semi-absolute, as in the case of Germany, which only slightly conditions its application to the punishable act being classified as a crime in the jurisdiction of the territory where it was committed or if that place is not subject to any criminal law jurisdiction—§ 7 para. 1.° StGB. Other Member States, meanwhile, give it considerably limited or conditional recognition. This is the case of the Netherlands, which applies it exclusively for serious crimes—§ 5.1 Wetboek van Strafrecht—Italy, which restricts application of the principle to those crimes that carry a sentence of, or greater than, 1 year

57

See pp. 421–425; Cerezo Mir (2006), pp. 252–253; this is also systematised by Ambos (2006), pp. 90–92; for a compilation of the classic doctrinal opinions in favour of this view, see Díez Sánchez (1987), pp. 421–425.

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Grounds for Claiming Jurisdiction

17

imprisonment—Art. 10.1 Codice penale—or Portugal, where it is invoked only if certain requirements are met: namely, that the perpetrator is in Portugal, the act being is in accordance with the law of the territory where it was committed, there is no criminal jurisdiction in this territory, or the crime committed is considered subject to extradition and this cannot be granted—Art. 5(c) and (d) of the Código Penal Português.58 In other legal systems, this principle is not expressly recognized, but nevertheless it is to be found in various international treaties and legislative instruments of the European Union. This is the case of the International Convention for the Protection of All Persons from Enforced Disappearance59 or Directive 2017/541.60 Therefore, these instruments have introduced this principle, by means of transposition, into the national legal systems of those Member States that did not initially recognize the latter in their legal systems—e.g. Lithuania. In the Spanish case, experts traditionally consider that this principle is not expressly recognized by our legal system.61 However, and notwithstanding the above provisions regarding its validity by ratification or transposition of supranational instruments that include it, we consider that, by virtue of the current wording of Art. 23(4) LOPJ, the passive personality principle should be understood as being fully integrated and specifically recognized in the Spanish legal system. We base our reasoning here on the study of the latest reforms carried out on the LOPJ and, especially on Art. 23(4) LOPJ mentioned previously. This precept was significantly modified and its wording widely extended with the reform made by LO 1/201462 and successive amendments,63 which transposed and compiled in Spanish positive law all existing rules on attribution of jurisdiction and competence stemming from international treaties signed by Spain. This has led to the transposition of the above-mentioned principle in our positive law, with the current wording of the LOPJ explicitly recognizing the validity of the passive personality principle, for example, in relation to crimes of torture and against moral integrity64—Art. 23(4)

58

Art. 5 d) Código Penal Português is rather a manifestation of the principle of passive personality combined with the principle of active personality, as it extends Portuguese criminal jurisdiction to those acts committed against Portuguese nationals, perpetrated by Portuguese nationals whose habitual residence is in Portugal at the time of the commission of the act, as long as they are in Portuguese territory. 59 Art. 9 International Convention for the Protection of All Persons from Enforced Disappearance (New York, 20 December 2006. In force since 23 December 2010). 60 Art. 19 Directive (EU) 2017/541, cit. which recognises the extension of the jurisdiction of all Member States to terrorist offences committed against their institutions or citizens, or against an institution, body, office or agency of the Union which has its seat there. 61 Ollé Sesé (2019), p. 53. 62 Organic Law 1/2014, of 13 March, amending Organic Law 6/1985, of 1 July, on the Judiciary, on universal justice (OJ n. 63 of 14 March 2014). 63 Organic Law 2/2015, of 30 March, which amends Organic Law 10/1995, of 23 November, of the Criminal Code, on terrorist offences (OJ n. 77 of 31 March 2015). 64 Arts. 174–177 Spanish Penal Code.

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(b) LOPJ—or concerning crimes of enforced disappearance and terrorism—Art. 23 (4)(c) and (d). However, it should be pointed out that the use of this attribution criterion will always be subject to limits and/or exceptions. These are both specific for each case—e.g. that the perpetrator of the torture is on Spanish territory—and general, by virtue of the clauses laid down in Art. 23(5) and (6) LOPJ—the mandatory filing of a complaint by the victim or the Public Prosecutor. Ultimately, the use of this principle as an attribution criterion in comparative law and in the Spanish case may be considered wholly residual, normally arising from the application of international treaties signed by the Member States, or subject to transposed Union regulations that include this principle as an attribution criterion. Nevertheless, this does not prevent the existence or mere recognition of this criterion of extraterritorial attribution of jurisdiction from being invoked and its application colliding with other attributing criteria, thereby producing a positive conflict of criminal jurisdiction. Habitual Residence and Domicile as Attribution Criteria Closely linked to the principle of personality, the attribution rule based on habitual residence or domicile is recognized, which, mutatis mutandis, implies applying the consequences deriving from this principle to those people who have their residence or habitually reside in the territory of the State that applies this criterion; this is the case even if their nationality does not correspond to that State. Most experts consider this rule a mere extension of the personality principle in its active form. Ambos argues that this can only be valid in those cases in which the criterion relating to domicile should be considered alternatively and not concurrently together with the principle of active personality; otherwise, a person’s domicile cannot be understood as an extension of this principle but rather a limitation of it.65 He shows as an example the wording of Germany’s § 5 para. 9 StGB, which, in relation to the crime of abortion committed abroad, requires both that the perpetrator is a German citizen (application of the principle of active personality) and that their habitual residence is in Germany (application of the domicile principle) for its jurisdiction to be exercised. Other examples of the use of domicile as an attribution criterion in comparative law can be found in France—Art. 113(13) in fine Code pénal—the Netherlands—§§ 5(2) and 7(3) Wetboek van Strafrecht—or Lithuania— Art. 5 baudžiamasis kodeksas. Although agreeing with the previous reasoning, we consider it necessary to stress, despite this admittedly being a minority opinion, that in our view the domicile criterion does not have to be constrained to being an extension of the personality principle in its active aspect. On the contrary, it can also be designed as a means of protection for the victim and, therefore, an extension of the personality principle in its passive format. Our opinion is based on numerous statements of positive law of Member States that would support this interpretation: in the German legal system, which would recognize this possibility—§ 5 paras. 6 and 6a StGB—or in the

65

Ambos (2006), pp. 88–90.

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Netherlands—§ 5(2) Wetboek van Strafrecht—or in Portugal—Art. 5(1)(d) Código Penal Português. Once again, it was not until the significant reform made by the above-mentioned LO 1/2014 that Spain introduced this norm specifically and exclusively in relation to certain crimes. Under the latter, we can nowadays find different examples of this attribution criterion in the LOPJ, which in turn relate to both the principle of active personality—e.g. Art. 23(4)(a) and (o) para. 5 LOPJ—and that of passive personality—e.g. Art. 23(4)(k) para. 4 LOPJ.

1.3.3.2

Principle of Protection

The so-called “real” or protection principle presupposes that the commission of certain acts that violate the essential legal rights and interests of a State should always be prosecuted regardless of the place of commission and the nationality of the perpetrators. These acts go against or affect the most primary bases of the State, its independence or its strategic interests. Consequently, no one can claim to have a better legitimate interest in prosecuting this conduct than the State that sees its own interests violated; this would justify the extension and application of its criminal jurisdiction and even intervention in the area of ius puniendi of another State. As we have already pointed out, there is a significant body of theory which understands that the passive principle of personality should be systematized within this principle of protection. We do not share this thesis, as we consider that despite the convergence of the protection principle with the passive principle of personality in terms of its aiming to protect a relevant legal interest, the nature of the protected legal interest differs enormously in both cases. The interests that are intended to be protected through the application of the real or protection principle are of special importance for the State, in other words, those of a collective and public nature. On this basis, the use of this principle as a criterion for attributing jurisdiction is broadly recognized and protected by international law, as a result of which it has been transferred to the national legal systems of practically all Member States. Germany recognizes it in its § 5 StGB, France in Art. 113(10) Code pénal, the Netherlands in § 4 Wetboek van Strafrecht, Italy in Art. 7 §§ 1–4 Code Penale, and Portugal in Art. 5(1)(a) Código Penal Português. In all the countries analyzed, applying the principle is reserved for a range of specific crimes recognized in their own substantive criminal law. As a consequence, although there is a common basis concerning certain specific crimes—those committed against the State’s own interests—the criminal offences for which this criterion can be used may vary considerably in each legal system. In Spain, the real principle is clearly recognized in Art. 23(3) of the LOPJ, which allows its limited application only for the prosecution of a limited list of crimes established in this provision.

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1.3.3.3

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Principle of Universality

The principle of universal jurisdiction as an attribution criterion in its broadest sense allows the invoking State to investigate and prosecute certain criminal acts, regardless of the place where they were committed and the nationality of the person accused or the victim. Historically, it has served as the basis for the prosecution of crimes committed abroad and ones which, if this principle were not recognized, could not be prosecuted by any State—e.g. piracy in international waters. This wide scope should in fact be qualified, since the rationale of this principle is not the prosecution of any punishable act committed abroad, but rather that its application is usually reserved exclusively for prosecuting particularly serious crimes and ones which are significant for the international community. It is based on the idea that the punishment of certain crimes that violate human rights goes beyond the sphere of purely national interest, to be considered crimes that directly attack the interest of the international community as a whole. Therefore, attributing jurisdiction on the basis of this principle depends exclusively on the nature of the crime,66 thereby justifying the capacity of any State to exercise its jurisdiction over these actions. The crimes to which universal jurisdiction refers is not a numerus clausus list, since it depends on the scope granted by each State in its legal system for exercising this principle. However, there is a certain consensus at international level regarding the consideration of certain examples of punishable conduct as delicta iuris gentium.67 This is currently the case with crimes of genocide, those against humanity, or so-called war crimes, the commission of which would justify any State’s exercise of this principle of universal jurisdiction. Consequently, the first problem encountered when this principle is applied nowadays is the existence of International Criminal Courts whose material scope of application coincides with the investigation and prosecution of these crimes. In addition to the ad hoc Courts for the former Yugoslavia and Rwanda, whose impact is less due to the specificity of their territorial and temporal scope, we now have a permanent International Criminal Court, whose jurisdiction extends to the aforementioned crimes and that of aggression.68 In view of the fact that all EU Member States have recognized the jurisdiction of the ICC, attribution at the national level of the principle of universal jurisdiction over the same crimes for which the latter has jurisdiction has lost a great deal of its original meaning. There are various sides to the recognition of this principle by EU Member States, and its application is often conditioned by international treaties and conventions that serve as a legal cover for its use. Thus, in most States a limited and non-absolute recognition of the principle of universal jurisdiction is to be found. In this regard,

66

Macedo and Robinson (2001), p. 23. On its genesis, see the work of the International Conferences for the Unification of Criminal Law held in Warsaw (1927), Brussels (1930), Paris (1931), Madrid (1933) and Copenhagen (1935). 68 Art. 5 Rome Statute of the International Criminal Court, cit. 67

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Germany recognizes it in its § 6 StGB; France, unlike the other extraterritorial principles, enshrines it in its criminal procedural norm and not in its substantive criminal law—Art. 689 of Code de procédure pénale—Italy in its Arts. 10 and Art. 7 § 5 Codice penale; the Netherlands regulates it jointly in the Wetboek van Strafrecht and in its specific law on international crimes (Wet internationale misdrijven69). Recognition of this principle in Spain has undergone a radical change since the first adoption of the LOPJ. Initially, the LOPJ of 1985 recognized, in its Art. 23(4), the principle of unlimited universal jurisdiction over a list of crimes; among these, in addition to that of genocide, there were others such as terrorism, prostitution or illegal drug trafficking. Consequently, the Spanish courts could invoke this principle to deal with any case, all over the world, relating to the above list of crimes, and without any further requirements. This extremely broad provision led to the initiation before the National High Court of criminal proceedings relating to cases against crimes committed by nationals and the interests of third States.70 The opening of these procedures was widely celebrated by the victims, but in turn severely criticized by the representatives of the affected States, as it clashed with the exercise of their sovereignty and, as a result, caused the deterioration of bilateral international relations.71 The Spanish legislator understood that such a broad interpretation of the principle of universal jurisdiction was meaningless and constituted, apart from a useless waste of valuable resources and means, a direct challenge to the sovereignty of other countries. On this premise, the decision was taken to substantially reduce the scope of the principle by means of LO 1/2009,72 which introduced various connecting factors as mandatory requirements for the use of this criterion; namely, the need to prove that the perpetrator was in Spain, that the victim was Spanish, and that a criminal proceeding had not already been initiated in relation to the same offence by another State or an international court. This first curtailment of the principle of universal jurisdiction did not prevent its continued use on a broad scale by the National High Court, which continued to hold criminal proceedings, often unfeasible in practice, against persons and crimes

69

Wet van 19 juni 2003, houdende regels met betrekking tot ernstige schendingen van het internationaal humanitair recht. 70 Cf. “Pinochet case”, in particular, the attribution of Spanish jurisdiction to hear the facts by virtue of the AAN Sala de lo Penal, Rollo de Apelación 173/98, Sección Primera, Sumario 1/98, 5 November 1998. 71 Belgium, whose national law allowed its courts to invoke the principle of absolute universal jurisdiction, was involved in a similar situation. However, this state changed the absolute nature of its criterion of attribution of jurisdiction as a result of diplomatic clashes with other states such as Israel or the United States over the indictment of some of its top leaders. In this sense, see Ollé Sesé (2019), p. 166, footnote 2. 72 LO 1/2009, of 3 November, complementary to the Law on the reform of procedural legislation for the implementation of the new Judicial Office, which modifies Organic Law 6/1985, of 1 July, on the Judiciary (OJ n. 266 of 4 November 2009). On the implications of this reform, see the comments of Bujosa Vadell (2009).

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committed abroad and without a close link with Spain; some of these had a great political impact.73 As a result, the legislator opted for an even more radical reform of the principle, through the approval of LO 1/2014. This widely discussed reform74 expanded Art. 23(4) LOPJ to carefully regulate the conditions for exercising this norm for each specific offence. In short, in order to apply the principle of universal jurisdiction by the Spanish national authorities, the new system insists that there should be strong connecting factors between the crime committed and Spain and its interests; these are often required cumulatively—e.g. that the perpetrator is in Spain and that the victim is Spanish.75 In addition, procedural premises are required, such as the non-existence of criminal proceedings abroad for the same events76 or the mandatory filing of a complaint by the victim or the Public Prosecutor.77 In practice, this latest reform of the principle of universal jurisdiction in Spain has explicitly signified its repeal, at least in its absolute format, which has led to the closing of most of the cases initiated on the basis of this attribution criterion.78 In fact, the majority of cases currently regulated by Art. 23(4) LOPJ can be considered examples in which other extraterritorial principles have been employed, rather than the pure application of the principle of universal jurisdiction.

1.3.3.4

Principle of Vicarious or Representational Jurisdiction

The principle of supplementary, vicarious or representational jurisdiction—different terms used by legal experts to refer to the same norm of extraterritorial attribution— represents the empowerment of a State to prosecute, through its national authorities, criminal conduct committed abroad, in representation or substitution of the criminal jurisdiction of another State that is, originally, in a better position to investigate or prosecute the offence. In other words, it implies a State assuming the role of competent jurisdiction originally corresponding to another State, not necessarily in the protection of its own interests. This norm was historically considered a further manifestation of the principle of universal jurisdiction and, therefore, part of it.79 However, today it should be regarded as a fully autonomous and independent principle of extraterritorial

73 This was the case with the indictment of former Chinese President Hu Jintao for the genocide in Tibet in 2013, see AAN 246/13 of 9 October 2013. Subsequently, as a result of the latest reform, the case was dismissed, see AAN 216/2014 of 2 July 2014, ES:AN:2014:216A; 74 Morales Prats (2014) and Ortego Pérez (2014). 75 See Art. 23(4)(a) ff. 76 Art. 23(5) LOPJ. 77 Art. 23(6) LOPJ. 78 Cf. STS n. 296/2015, 6 May 2015, ES:TS:2015:2046; STS n. 551/2015, 24 September 2015, ES: TS:2015:3992; STS n. 869/2016, 18 November 2016, ES:TS:2016:4972. 79 Cepeda Pérez (2012), pp. 71 ff.

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attribution. The main reason behind this consideration is related to the different purpose of each of these norms, since while the ultimate goal of the principle of universal jurisdiction is protecting interests that affect the entire international community, that of vicarious jurisdiction seeks to protect the interests of the State that originally was in a “better position” or a primary position to exercise jurisdiction, even when this protection is carried out on its behalf.80 Logically, such extensive intervention by one jurisdiction in respect of another is hardly justifiable from the point of view of international law, unless this is allowed thanks to an agreement or treaty between both parties. As a result, this principle is not as widely recognized in law as the other extraterritorial attribution criteria we have analyzed. However, we can find examples of this principle in certain national legal systems of the Member States: Germany explicitly recognizes this in § 7 para. 2 StGB81 and the Netherlands in its § 8b Wetboek van Strafrecht. In other countries such as France or Portugal, it is assimilated into their legal system as a direct consequence of the application of the principle aut dedere aut iudicare: the French legal system recognizes it in the conditions provided in Art. 113(8)(1) Code pénal,82 while in Portugal it can be understood as arising from Art. 5(1)(e) Código Penal Português.83 In the case of Spain, this principle is not specifically recognized in our LOPJ, so a priori does not seem to be included in our legal system. However, in relation to extradition, there is a scenario deriving from the principle aut dedere aut iudicare, which is recognized in Art. 23(4)(a) LOPJ and in Art. 3(1) and (2) of the Law of Passive Extradition.84 These provisions allow Spanish jurisdiction to be extended to nationals and foreigners whose extradition has been refused, on the condition that this is requested by the State in which the acts were originally committed; this includes the possibility that the pending criminal proceedings in the latter State are transferred to Spanish jurisdiction. However, and apart from the exceptions provided for in these cases, we must consider that the principle of supplementary or

80

See Gilbert (1998), p. 102; Ryngaert (2008), p. 123; Chehtman (2013), pp. 411–412. An application of this principle in Germany can be seen in the judgement of the Bayerisches Oberstes Landesgericht “Djajic”, 3 St 20/9623 of 23 May 1997, concerning crimes of genocide committed in the former Yugoslavia. However, Djajic was finally convicted of murder, as genocidal intent could not be proven in his conduct. See Elewa Badar (2013), p. 342. 82 In summary, French law applies to offences committed abroad and punishable by at least 5 years’ imprisonment when the French authorities refuse extradition because the penalty to be applied in the State of origin would be contrary to French public order, or because respect for fundamental procedural guarantees is not ensured, or because the offence is considered a political crime. In these cases, the French jurisdiction will hear the case if the authority of the country from which the offence originated and to which extradition is refused officially requests it and the Public Prosecutor’s Office so requests. 83 It states that Portuguese criminal law applies to crimes committed by foreigners abroad, as long as they are in Portugal and when, although extradition has been requested by the forum and the crime committed admits extradition, extradition cannot be granted. 84 Law 4/1985, of 21 March 1985, on passive extradition (OJ n. 73 of 26 March 1985). 81

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representational jurisdiction does not exist, at least explicitly, in the Spanish legal system. 85

1.3.4

Rules on Jurisdiction Within International and Supranational Instruments

In the last decades, an increasing number of international and supranational instruments aimed at harmonising substantive criminal law have been adopted. These instruments are often constrained to the most serious areas of crimes with a transnational dimension. In this sense, within the Council of Europe, the conventions on the prevention of terrorism,86 protection of children against sexual exploitation87 and on cybercrime88 must be mentioned. Within the European Union, the current wording of Art. 83 allows to establish, by means of directives, minimum rules concerning the definition of criminal offences and sanctions related to serious cross-border crimes (the so-called euro-crimes laid down on Art. 83(1) TFEU) and when the approximation of criminal laws of the Member States is deemed essential to ensure the implementation of EU policy (possibility offered by Art. 83(2) TFEU). This EU competence has already been used for the adoption, among others, of Directives on combatting trafficking in human beings,89 on cybercrime90 and on terrorism,91 a proliferation of EU substantive criminal law instruments that has being considered excessive by some scholars for potentially leading to an overcriminalization in Europe and even putting civil rights and human rights at risk.92 In the latter sense, it must be borne in mind that any approximation of substantive criminal law must respect the constitutional traditions of the Member States and offer solid protection of fundamental rights, in particular, those enshrined in Arts. 47–50 the CFREU in conjunction with Arts. 51(1) and 52(1) and (3).93 All in all, it is clear that substantive criminal law is incomplete and worthless if it is not combined with rules that provide for its applicability.94 Hence, in addition to the main rules on the definition of crimes and sanctions that these instruments mainly

85

García Sánchez (2004), pp. 160 ff. Council of Europe Convention on the Prevention of Terrorism (Warsaw, 16 May 2005). 87 Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse (Lanzarote, 25 October 2007). 88 Council of Europe Convention on Cybercrime, cit. 89 OJ L 10, 14 April 2011. 90 OJ L 218, 14 August 2013. 91 OJ L 88, 31 March 2017. 92 Vervaele (2019), pp. 10–11. 93 Scalia (2015), pp. 100–111. 94 Caeiro (2010), p. 372. 86

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Table 1.1 Rules on jurisdiction established in supranational instruments on sexual exploitation of children

Territoriality Extraterritorial Exceptions Dual criminality Procedural requirements National sovereignty clause Settlement of conflicts of jurisdiction

UN Protocol Convention Art. 4 X X

X

Lanzarote Convention Art. 25 X X X X (conditional) X X

Budapest Convention Art. 22 X X X X (conditional)

X

X

Directive 2011/93/EU Art. 17 X X X X X

X

offer, they usually also include and establish their own rules on jurisdiction in order to ensure the effective prosecution of these offences by the Member States. After a further scrutiny of these instruments, the first thing that we shall notice is that, albeit most of these international instruments on substantive criminal law harmonisation have been adopted at different levels (international, regional, European Union), they often refer to the same areas of serious transnational crime. This means that those States that have ratified or implemented several of these instruments count with multiple international legal bases for exerting their criminal jurisdiction over the same kind of criminal offences, an overlapping scenario that is particularly common among the Member States of the European Union. E.g. Concerning sexual exploitation of Children, Spain has ratified the following international conventions: within the UN, the Optional Protocol to the Convention on the Rights of the Child.95 Within the Council of Europe, the Lanzarote Convention on protection of Children against sexual exploitation and the Budapest Convention on cybercrime—which includes offences related to child pornography. Furthermore, as a Member State of the European Union, Spain has implemented Directive 2011/93/EU, on combating sexual abuse and sexual exploitation of children and child pornography.96

Secondly, albeit they refer to the same criminal offences, the rules on jurisdiction laid down in each of these international instruments are not equal. Likewise, they often combine territorial and extraterritorial grounds for claiming jurisdiction and do not establish a hierarchy between the different criteria to be taken into account. E.g. in the case of sexual exploitation of children, we find a melting pot of international instruments that allow Member States to exert its jurisdiction over the same acts, but those are based on different grounds (see Table 1.1)

95 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (General Assembly resolution A/RES/54/263 of 25 May 2000). 96 OJ L 335, 17 December 2011.

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As can be seen in the table, all the above-mentioned instruments do include rules based both on the principle of territoriality and on extraterritorial criteria for claiming jurisdiction. However, not all instruments have foreseen exceptions or clauses based on the application of the dual criminality principle, or specific procedural requirements to initiate proceedings. On the other hand, only the Lanzarote and Budapest Conventions have specific rules on the settlement of possible conflicts of jurisdiction that may arise between the States parties. In conclusion, concerning the areas of criminality referred to in Article 83(1) (2) TFEU, the Union has already adopted a wide variety of legal instruments that also oblige Member States to establish extraterritorial jurisdiction.97 This technique, whose main objective is to ensure prosecution and avoid impunity for the most serious criminal offences that these instruments are intended to prevent, combined with the coexistence of different international instruments on the same criminal substantive law matters, contributes to multiplicate the extraterritorial grounds for claiming jurisdiction, increasing the risk of overlapping prosecutions and eventually hindering the allocation of criminal jurisdiction.

1.4 1.4.1

Conflicts of Criminal Jurisdiction: General Profiles The “Hierarchy Issue” on the Allocation of Jurisdiction

Having analysed the principles of attribution of jurisdiction, it is essential to point out that, although it is true that the principle of territoriality can be considered the generally accepted criterion and the main criterion of attribution for the reasons set out above, in reality there is no conventional hierarchy that allows for establishing the pre-eminence of one criterion over others, beyond what is provided for in the exceptions contained in each national system with respect to the application of each principle and the provisions of international conventions applicable in specific cases. From a positive point of view, this situation provides the national authorities with a broad legal basis for exercising jurisdiction over most criminal offences, even if committed abroad. It therefore favours the possibility of prosecuting the offender and punishing the allegedly criminal act, while minimising the potential occurrence of a negative conflict or defect of jurisdiction. However, from a negative point of view, recognising the full and equal validity of all of the above criteria makes it possible that, if several national authorities decide to prosecute a given criminal conduct, and all have a legal basis in their positive law to do so, it could be a collision between criminal jurisdictions—a positive conflict of jurisdiction—that cannot be resolved by invoking a pre-established hierarchy criterion. Although, de facto, it can be considered that the principle of territoriality should be hegemonic, the application of this criterion by itself is of no use for the

97

Klip (2009), p. 186; Klip (2016), pp. 231 ff.

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determination of jurisdiction in crimes of a cross-border nature. Furthermore, this situation may extend even to crimes that do not have cross-border elements, e.g. a conflict between the application of the territoriality principle by a State A and the passive personality principle by a State B for a crime committed exclusively on the territory of State A. Therefore, we have to conclude that the multiplicity of attribution criteria and the lack of a hierarchy are the main causes for the emergence of a conflict of criminal jurisdiction.

1.4.2

Conflicts of Criminal Jurisdiction

1.4.2.1

Positive Conflicts of Jurisdiction

Having established a specific concept of criminal jurisdiction, the next matter to be determined is what should be understood by conflict of criminal jurisdiction for the purposes of this book. Preliminary, we have stated that a conflict of jurisdiction implies a collision or, more precisely, an overlap in the exercise of several criminal jurisdictions regarding the same criminal acts committed by the same person. This may be an actual overlapping if the competent authorities of the different jurisdictions have already initiated an investigation or criminal proceedings on the same acts; or it rather be potential in those cases in which two or more jurisdictions are virtually competent to exert its jurisdiction over the same acts allegedly committed by the same person, but there is no any ongoing investigation or prosecution yet. Bearing in mind that national criminal jurisdiction is closely related to the concept of sovereignty, such overlapping will usually occur at the transnational rather than the national level.98 Having stated the above, it can be argued that we are also faced with a conflict of criminal jurisdiction in those cases in which the conflict arises between a national jurisdiction—e.g. Spanish jurisdiction—and a criminal jurisdiction recognised by a supranational body—e.g. the jurisdiction of the ICC. Let us consider a case in which, on Spanish territory, acts regarded as a crime against humanity are perpetrated against Spanish civilian victims. In this case, both Spanish jurisdiction—pursuant

98 In the Spanish case, the 1978 EC enshrines the principle of jurisdictional unity in Art. 117.5, so that it would make no sense to speak of a conflict of criminal jurisdiction between two Spanish judicial authorities, since criminal jurisdiction in Spanish territory must be understood as single and indivisible. In order to properly speak of a conflict of jurisdiction, it is a conditio sine qua non that there should be at least two different jurisdictions that may come into collision, which in the Spanish case can only occur, in the criminal order, between judicial bodies of the ordinary jurisdiction and bodies of the military jurisdiction, which must be considered a special jurisdiction - albeit linked to the ordinary jurisdiction through the 5th Chamber of the SC. Conflicts that may arise between jurisdictional bodies and the administration should not be considered conflicts of jurisdiction, despite the unfortunate wording in this sense of Art. 38 LOPJ. The resolution of questions of jurisdiction that may arise between criminal courts to determine who has jurisdiction over specific criminal acts is a different matter.

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Article 23(1) LOPJ—and the ICC—by invoking Articles 12 and 13 of the Rome Statute99—could, in principle, exert their criminal jurisdiction over the same acts, although it seems clear that, in normal conditions,100 the former should prevail over the latter without there being a conflict of jurisdiction. Similarly, the simultaneous exercise of criminal jurisdiction by two supranational bodies—e.g. between the International Criminal Court and the ad hoc tribunals for the former Yugoslavia and for Rwanda—can also be considered a conflict of criminal jurisdiction. However, the scenarios presented above are not relevant to the subject of our analysis due to two fundamental reasons: one of substance, since this study is restricted to a more specific area, namely the problem of conflicts of jurisdiction within the EU and, specifically, between the national jurisdictions of the Member States. Although the conflicts between a national criminal jurisdiction and supranational criminal jurisdictions described above may occur, it must be borne in mind that the exceptional nature and primacy of the jurisdiction of the ad hoc courts and the complementary nature of the jurisdiction of the ICC, along with the limited catalogue of crimes that comprise the material scope of application over which they can exercise their jurisdiction, make it highly unlikely that these potential conflicts will arise in a generalised manner or, if they do occur, that they will be sustained over time. On the other hand, States have incorporated into their domestic law specific provisions on relations and cooperation with these international Courts—especially with the ICC 101—aimed at improving collaboration and thus avoiding these conflictive situations.102 Based on the above exclusion, and for the purposes of this study, a conflict of criminal jurisdiction should be understood as a situation in which two or more EU Member States, in application of their own criteria for the attribution of criminal jurisdiction, simultaneously have jurisdiction to prosecute or try the same criminal acts committed by the same person. Further delimiting the object of the study, we are faced with a positive conflict of criminal jurisdiction—as opposed to the so-called negative conflicts103—when both potentially competent States effectively decide to 99 Rome Statute of the International Criminal Court (Rome 17 July 1998. In force since 1 July 2002). 100 Under the principle of complementarity, the ICC may not carry out an investigation or prosecution of facts if a State Party that has jurisdiction initiates a criminal investigation or prosecution of the same facts or has declined to prosecute the same facts (Art. 17 Rome Statute). However, if the criminal investigation or prosecution in the State Party or the decision not to prosecute is made with the sole intention of preventing the ICC from exercising jurisdiction, with no real intention to investigate or prosecute the suspect (fake proceedings), the Court could continue to exercise jurisdiction over the same facts (Art. 17(a) and (b) Rome Statute). 101 E.g. in Spain Ley Orgánica 18/2003, of 10 December, de Cooperación con la Corte Penal Internacional. (OJ n. 296 of 11 December de 2003); in the Netherlands Uitvoeringswet Internationaal Strafhof (Rijkswet van 20 juni 2002 tot uitvoering van het Statuut van het Internationaal Strafhof met betrekking tot de samenwerking met en bijstand aan het Internationaal Strafhof en de tenuitvoerlegging van zijn vonnissen). 102 In this sense, see Arts. 7–10 Ley Orgánica 18/2003, cit. 103 On this issue, Caeiro (2010), pp. 371–373; Morán Martínez (2013).

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exercise their jurisdiction over the same punishable acts, generating from that moment a true overlapping of jurisdictions, which can lead to the coexistence of parallel criminal investigations and/or proceedings in each State.

1.4.2.2

Negative Conflicts of Jurisdiction

Negative conflicts of jurisdiction should be identified with those cases in which two or more States can potentially exert jurisdiction over the same criminal acts, but nevertheless refuse to prosecute because they do not find it sufficiently linked to their jurisdiction or for other reasons. On the contrary, when no State can claim jurisdiction over specific criminal acts—because no legal grounds have been established— should not be considered as a situation of conflict, but rather as a lack of or failure of criminal jurisdiction. The likelihood of a negative conflict of jurisdiction to exist is minimal compared to the likelihood of a positive conflict to arise. This is mainly due to the proliferation of extraterritorial attribution criteria at the national and international level that have been previously analysed. In addition to its relative importance in quantitative terms, negative conflicts of jurisdiction pose different problems from a qualitative point of view. The existence of a negative conflict of jurisdiction does not imply a potential violation of the ne bis in idem, or a breach of the right to the heard by a court previously established by law. However, the impunity that may stem from a negative conflict of jurisdiction may also constitute a violation of human and fundamental rights, particularly those of victims—e.g. a violation of the procedural aspect of Art. 2 ECHR.104 Therefore, the response to this problem cannot be given using the same approach as in the case of positive conflicts of jurisdiction but requires instead a specific and individual action. The main measure to avoid negative conflicts of jurisdiction is to establish clear principles of attribution of jurisdiction that prevent States from refusing to exert jurisdiction due to a virtual lack of connection. This action can be taken by States themselves, through the recognition of new, broader principles of attribution of jurisdiction; or it can be done at the international level and in a coordinated manner, through specific instruments providing rules on jurisdiction. The latter path is indeed the most effective and is the one that has been adopted by the European Union. As it has been previously explained, the European Union has introduced its own rules on the attribution of criminal jurisdiction through substantive criminal law harmonisation directives, currently on the basis of Art. 83 TFEU.105 By means of this strategy, which paradoxically may contribute to worsening the problem of positive conflicts, Member States have provided themselves with a network of

104

Cf. ECtHR Güzelyurtlu and others v. Cyprus and Turkey, 29 January 2019, CE:ECHR:2019: 0129JUD003692507; Romeo Castaño v. Belgium, 9 July 2019, CE:ECHR:2019: 0709JUD000835117. 105 See Sect. 1.3.4 in this chapter.

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criteria for claiming jurisdiction in criminal areas considered to be a priority—e.g. terrorism, trafficking in human beings, sexual exploitation, etc. This makes it difficult for negative conflicts of jurisdiction to arise within the AFSJ. In addition, as we will see later in this book, Eurojust has specific powers to deal with cases where no Member State has initiated an investigation or prosecution of specific acts. Even the exercise of the competence of the European Public Prosecutor’s Office and its relationship with the national prosecution authorities of the Member States prevents the emergence of such negative conflicts in the specific area of PIF crimes. Negative conflicts of jurisdiction are thus a problem of a very different nature and are currently being effectively addressed by the Union by means of substantive criminal law harmonisation. Consequently, our study will not specifically deal with negative conflicts albeit some of the measures established in our proposals may also prevent their emergence.

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Calderón Cuadrado MP (2012) Contra la armonización positiva - y procesal - en la UE. In: De la Oliva Santos A, Calderón Cuadrado MP (dirs), Cedeño Hernán M, Pardo Iranzo V (coords) La Armonización del Derecho Procesal tras el Tratado de Lisboa. Thomson Reuters Aranzadi, Pamplona, pp 69–141 Cepeda Pérez AI (2012) Principio de Justicia Penal Universal versus principio de jurisdicción penal internacional. In: Cepeda Pérez AI (dir) El principio de Justicia Universal: Fundamentos y límites. Tirant lo Blanch, Valencia, pp 61–101 Cerezo Mir J (2006) Curso de Derecho penal español. Parte General. 1, Introduction. Tecnos, Madrid Chehtman A (2013) Jurisdiction. In: Dubber M, Hörnle T (eds) Oxford handbook of criminal law. Oxford University Press, Oxford, pp 399–421 Chiovenda G (1922) Principios de Derecho Procesal Civil - Tomo 1. Spanish translation by Professor José Casáis y Santaló. Editorial Reus, Madrid Díez Sánchez JJ (1987) La ley penal en el espacio. Teoría general y análisis de la legislación española. Doctoral thesis directed by Vivés Antón, T.S., University of Alicante, Alicante Dodge W (2016-2017) Jurisdiction in the fourth restatement of foreign relations law. Yearb Priv Int Law 18:143–170 Elewa Badar M (2013) The concept of mens rea in international criminal law. Hart Publishing, Oxford Fonseca Morillo FJ (2003) La orden de detención y entrega europea. Revista de Derecho Comunitario 14:69–95 García Moreno JM (2013) El convenio de asistencia judicial penal de 1959. In: Carmona Ruano M, Gónzalez Vega I, Moreno Catena V (dirs), Arnáiz Serrano A (coord) Cooperación Judicial Penal en Europa. Dykinson, Madrid, pp 111–166 García Sánchez B (2004) Límites a la ley penal en el espacio. Atelier, Barcelona Gilbert G (1998) Transnational fugitive offenders in international law. Martinus Nijhoff Publishers, The Hague Hixson K (1988) Extraterritorial jurisdiction under the third restatement of foreign relations law of the United States. Fordhan Int Law J 12(1):127–152 Jimeno Bulnes M (2010) Towards common standards on rights of suspected and accused persons in criminal proceedings in the EU? In CEPS: Liberty and security in Europe, February Klip A (2009) European criminal law. Intersentia, Antwerp Klip A (2016) European criminal law. Intersentia, Antwerp Kostoris R (2018) European law and criminal justice. In: Kostoris R (ed) Handbook of European criminal procedure. Springer, Cham, pp 3–60 Macedo S, Robinson M (2001) The Princeton principles on universal jurisdiction. Program in Law and Public Affairs, Princeton University, Princeton Martín Diz F (2008) La conveniencia de procesos penales supranacionales: el caso de la Unión Europea. In: Bujosa Vadell LM (coord) Hacia un verdadero espacio judicial europeo: perspectivas para la construcción de un proceso penal europeo e instrumentos de cooperación policial y judicial en la Unión Europea. Comares, Granada, pp 23–78 Meyer F (2013) Country report “Germany”. In: Böse M, Meyer F, Schneider A (eds) Conflicts of jurisdiction in criminal matters in the European Union. Volume I: National reports and comparative analysis. Nomos, Baden-Baden, pp 141–186 Montero Aroca J (2018) Derecho Jurisdiccional I. Tirant lo Blanch, Valencia Morales Prats F (2014) La Reforma del Principio de Justicia Universal. Revista Aranzadi de Derecho y Proceso Penal 35:13–20 Morán Martínez RA (2013) Conflictos de jurisdicción, “ne bis in idem” y transferencia de procedimientos. In: Carmona Ruano M, Gónzalez Vega I, Moreno Catena V (dir), Arnáiz Serrano A (coord) Cooperación Judicial en Europa. Dykinson, Madrid, pp 999–1049 Ollé Sesé M (2019) Crimen internacional y jurisdicción penal nacional: de la justicia universal a la jurisdicción penal interestatal. Thomson Reuters-Aranzadi, Madrid

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Orbaneja E (1947) Comentarios a la ley de enjuiciamiento criminal de 14 de septiembre de 1882. con la Legislación orgánica y procesal complementaria. Volume I. Bosch, Barcelona Ortego Pérez F (2014) La restrictiva reforma de la jurisdicción universal. Iuris: Actualidad y práctica del derecho 210:20–23 Quintero Olivares G (2015) Parte general del derecho penal. Thomson Reuters-Aranzadi, Cizur Menor Ryngaert C (2008) Jurisdiction in international law. Oxford University Press, Oxford Ryngaert C (2015) Jurisdiction in international law. Oxford University Press, Oxford Saul B (2006) The legal response of the league of nations to terrorism. J Int Crim Just 4(1):78–102 Scalia V (2015) Protection of fundamental rights and criminal law. The dialogue between the EU Court of Justice and National Courts. EUCRIM 3:100–111 Serra Domínguez M (2008) Jurisdicción, Acción y Proceso. Atelier, Barcelona Sieber U (2010) El futuro del Derecho penal europeo. Una nueva concepción sobre los objetivos y modelos del sistema penal europeo. In: Arroyo Zapatero L, Nieto Martín A (dirs), Muñoz de Morales M, Bailone M (coords) Piratas, mercenarios, soldados, jueces y policías: nuevos desafías del Derecho penal europeo e internacional. Ediciones de la Universidad de CastillaLa Mancha, Cuenca, pp 153–223 Vervaele JAE (2013) European territoriality and jurisdiction: the protection of the EU’s financial interests in its horizontal and vertical (EPPO) dimension. In: Luchtman M (ed) Choice of forum in cooperation against EU financial crime. Eleven International, The Hague, pp 167–184 Vervaele JAE (2019) European criminal justice in the European and global context. N J Eur Crim Law 10(1):7–16 Vidal Fernández B (2010) El derecho a intérprete y a la traducción en los procesos penales en la Unión Europea. La iniciativa de 2010 de Directiva del Parlamento Europeo y del Consejo relativa a la interpretación y traducción. In: Arangüena Fanego C (dir) Espacio Europeo de Libertad, Seguridad y Justicia: últimos avances en cooperación judicial penal. Lex Nova, Valladolid, pp 183–222 Wolswijk H (2013) Country report “the Netherlands”. In: Böse M, Meyer F, Schneider A (eds) Conflicts of jurisdiction in criminal matters in the European Union. Volume I: National reports and comparative analysis. Nomos, Baden-Baden, pp 325–363 Zúñiga Rodríguez L (2016) El concepto de criminalidad organizada transnacional: problemas y propuestas. Revista Nuevo Foro Penal 12(86):62–114

Further Reading Braum S (2021) ‘Rechtsstaat’ and European criminal law – from the end of sovereignty. N J Eur Crim Law 12(1):14–22 Colombo Campbell J (1991) La jurisdicción en el derecho chileno: un aporte al estudio del conflicto y sus formas de seolución. Editorial Jurídica de Chile, Santiago de Chile

Chapter 2

EU Legal Framework on Conflicts of Criminal Jurisdiction

2.1 2.1.1

Primary Law Background

The prevention of conflicts of criminal jurisdiction between EU Member States was not expressly recognized in the primary law of the Union, until this issue acquired greater relevance for these with the creation of the AFSJ and the extension of the Schengen area. It was the TEU, as drafted after the Treaty of Amsterdam, which included for the first time the prevention of jurisdiction conflicts of jurisdiction among EU Member States with regard to common action in the field of judicial cooperation in criminal matters.1 Later, following the Treaty of Nice, this prevision was expanded to include and recognize the role of the then recently established Eurojust in assisting judicial cooperation in criminal matters between Member States—Art. 31(1)(d) and 31(2) TEU. These provisions served as the legal basis for adopting all secondary legislation on this matter: Framework Decision 2009/948/ JHA and the powers granted to Eurojust by its Decision (currently replaced by Regulation (EU) 2018/1727). With the entry into force of the Lisbon Treaty, and due to the elimination of the “pillar structure”, the prevention and resolution of conflicts of jurisdiction have acquired greater relevance in the Treaties. Although there is no express reference to this matter in the current TEU, nor is it specifically mentioned within either the exclusive or shared competences of the EU as recognized by the TFEU, it can be considered an issue deriving from shared competence in the Area of Freedom, Security and Justice acknowledged in Art. 4(2) TFEU.

1 Art. 31(d) TEU-Amsterdam: “Common action on judicial cooperation in criminal matters shall include the prevention of conflicts of jurisdiction between Member States”.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 A. Hernández López, Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU, Comparative, European and International Criminal Justice 3, https://doi.org/10.1007/978-3-031-15691-5_2

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The specific regulation of this issue is currently found in Chapter IV of Title V TFEU, devoted to the Area of Freedom, Security and Justice. Mainly, by means of two different provisions: Art. 82 (1)(b) and Art. 85 (1)(c).

2.1.2

Current Legal Basis in the Treaties

2.1.2.1

Art. 82(1)(b) TFEU

Firstly, Art. 82(1)(b) TFEU establishes that the Union shall adopt, by means of ordinary legislative procedure, measures aimed at preventing and resolving conflicts of criminal jurisdiction between Member States. This is a clear legal mandate to take action on this field, since the word “shall” is commonly used in the Treaties to produce an obligation to act.2 Besides, it is also a general provision that reaffirms the disappearance of the “pillar structure” and the consequent extension to this area of the procedure for adopting legislative action by qualified majority voting—albeit with certain reservations in some areas. This includes the possibility of adopting both regulations and directives to replace the pre-existing third pillar legislative measures. Furthermore, there is no special feature applying to decision-making here (e.g. emergency brake), as compared to the rules on substantive criminal law or domestic criminal procedure.3 All the above-mentioned characteristics of Art. 82(1)(b) combined show that Member States and the European Union have considered that preventing and settling conflicts of criminal jurisdiction is one of the crucial steps for maintaining the current mutual recognition-driven Area of Freedom Security and Justice.4

2.1.2.2

Art. 85(1)(c) TFEU

Secondly, in relation to the powers assigned to Eurojust, TFEU Art. 85(1)(c) allows for the adoption of regulations that establish and expand the powers of the Agency, which may include intensifying judicial cooperation by resolving conflicts of jurisdiction. The literal wording of this provision allows us to infer that the European primary legislator has left the door open for a possible assumption by Eurojust of decisionmaking and binding powers in the case of a conflict of criminal jurisdiction between Member States.5 As an immediate consequence, it is feasible to admit the possibility of the EU deciding to grant Eurojust not merely advisory powers, as it currently

2

In this sense, Wasmeier (2018), p. 102. Peers (2016). 4 Wasmeier (2018), p. 103. 5 Hernández López (2018), pp. 468–470. 3

2.1

Primary Law

35

possesses, but also decision-making and binding powers regarding a conflict of criminal jurisdiction between Member States.

2.1.2.3

Compatibility of Both Provisions

Hence, there are currently different and as yet unused provisions in primary law that would allow the Union legislator to adopt new secondary legislation on this matter. However, at no time does the Treaty clarify the relationship between the two provisions. It is then necessary to determine whether the powers recognized in Art. 82 (1)(b) and 85(1)(c) TFEU make these mutually exclusive, complementary or concurrent. Among the three possible interpretations indicated above, we must first of all discard the idea that both precepts can be mutually exclusive, since it would make no sense to assume that the intention of the European legislator when deciding on prescribing two different provisions of the Treaty to resolve a conflict of criminal jurisdiction was to promote two alternative legal bases to deal with this problem. Regarding the option that both precepts are complementary, this interpretation is entirely plausible, and even more so if it is considered that it corresponds to the approach used so far for the current conflict resolution procedure. Here, as we will soon see in more detail, Framework Decision 2009/948/JHA establishes a first-level procedure in which the role of Eurojust is complementary and restricted to mediation in a conflict should there be a lack of agreement between the authorities involved. Finally, the idea that both provisions should be understood as simultaneously applicable assumes that the European legislator was contemplating a supranational conflict resolution mechanism to be adopted at a later stage. Although the literal nature of the Treaty does not allow for confirmation that this is the unequivocal intention of the legislator, neither does it allow for ruling out the idea that this is the underlying purpose, since this interpretation would successfully account for there being two different provisions regulating the same issue.

2.1.3

Other Relevant Primary Law: CISA and CFREU

In addition to the provisions expressly provided for in the Treaties, we must also consider as sources of primary law applicable to this issue both the CISA— Arts. 54–58—and the CFREU, since the TEU recognizes both texts as having the same legal value as the Treaties albeit on the basis of different provisions.6 The consideration of the CISA as part of primary law should be understood as having been recognized through Protocol No 7 annexed to the Treaty of Amsterdam, which allows it to be considered an integral part of the Treaty on the basis of the

6

On this issue, see Jiménez Piernas and Crespo Navarro (2011), p. 186.

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application of international treaty law. Furthermore, this same interpretation is stated in Art. 51 TEU, which declares that the Protocols and Annexes to the Treaties shall form an integral part thereof. In the case of the CFREU, it has already been previously mentioned that the status of primary law has been expressly recognised by Art. 6(1) TEU after the Lisbon Treaty, which enshrines its equivalent legal value with respect to the Treaties. These texts are especially relevant with regard to the effects and limits of conflicts of criminal jurisdiction and the application of the ne bis in idem principle as part of the procedural rights and safeguards of those being investigated and accused. This will be further explained through the analysis of the risk of violation of rights and safeguards in criminal proceedings in the light of the case law of the Luxembourg Court.7

2.2 2.2.1

The Framework Decision 2009/948/JHA Background

Before the initiation of the procedure for the adoption of Framework Decision 2009/ 948/JHA, experts were already debating the convenience of establishing a mechanism for preventing and resolving jurisdictional conflicts between Member States. In this regard, the Corpus Juris 2000 advocated a consultation model establishing three main criteria for determining jurisdiction, and the possibility of jurisdictional control by the Luxembourg Court.8 Subsequently, a group of scholars from the Max-PlanckInstitut für ausländisches und internationales Strafrecht put forward a detailed proposal for the prevention and resolution of conflicts. This proposal was also based on an agreement reached between the authorities involved, combined with the classification of criteria for determining jurisdiction, the possibility of supranational jurisdictional control and an accurate definition of the scope of ne bis in idem.9 At the legislative level, the Hague Program urged Member States to consider the opportunity to adopt rules on conflicts of jurisdiction, thereby increasing effectiveness in prosecuting crime, while respecting the guarantees of the parties involved in the criminal proceedings. The possibility of adopting a legal framework at EU level that would address this issue had been previously considered and was included in various areas of the program of measures Member States should strive to implement mutual recognition of decisions in criminal matters.10 In this program, measures proposed included a new study of CISA Arts. 54–57 in relation to the ne bis in idem principle, the possibility of adopting an instrument for transmission of criminal

7

See Chap. 3. Arts. 26(2) and 28 Corpus Juris 2000, Delmas-Marty and Vervaele (2000). 9 Biehler et al. (2003), pp. 12 ff. 10 OJ C 012 of 15 January 2001. 8

2.2

The Framework Decision 2009/948/JHA

37

proceedings between Member States, and the creation of a European register of information on convictions and criminal records. However, at this first moment, the degree of priority of these measures was much lower than that given to other areas.11 The first legislative initiative was presented in 2003 by Greece,12 with a view to adopting a Framework Decision on applying the ne bis in idem principle,13 which sought to provide an initial response to the problem of lis pendens in the EU in line with this principle.14 Although the material scope of this proposal focused on delimiting the ne bis in idem principle, establishing a common definition of what should be understood by the same acts,15 it also established a series of criteria for determining competent jurisdiction in the case of lis pendens,16 or, more appropriately in our opinion, in that of a positive conflict of jurisdiction or potential ones. It distinguished in its first and second paragraphs between those cases in which there are already ongoing parallel proceedings or prosecutions—actual positive conflict of jurisdiction—and those other cases in which, although two or more Member States can virtually exercise jurisdiction over the same criminal acts, there are not yet ongoing parallel proceedings in each State involved—potential positive conflict of jurisdiction. However, the Greek initiative was not successful within the Council and in fact was never adopted. Following the failed Greek initiative, the Commission published in 2005 a Green Paper on conflicts of jurisdiction and the ne bis in idem principle.17 This Green Paper established guidelines that, in the opinion of the Commission, should be taken into account for assigning each criminal case to a single Member State, thus avoiding a possible conflict of criminal jurisdiction. The proposed guidelines within this mechanism18 were based on a procedure divided into three phases: a first phase, in which there was an obligation on the part of the competent national authorities concerned to identify and inform of the conflict; a second stage, focusing on consultation and debate between national authorities—this could be mandatory and be assisted by 11

For example, the areas concerning the re-examination of Articles 54–57 of the CISA (section 1.1) and the development of an instrument to facilitate the settlement of conflicts of jurisdiction between Member States (section 2.3) were assigned a level 6 and 4 priority respectively, with level 6 being the lowest level of priority. In contrast, the study on the feasibility of exchanging information based on a standard form for criminal records applications against a person in a Member State (section 1.2) was assigned a level 2 priority. 12 Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision concerning the application of the ne bis in idem principle (OJ C 100 of 26 April 2003). 13 It is necessary to recall the pre-existence at European level of the Convention on the application of the ne bis in idem principle (Brussels, 25 May 1987), ratified by Denmark, France, Italy, the Netherlands and Portugal. However, the purely intergovernmental nature of this instrument, along with its low ratification rate, meant that the scope of application was very limited. 14 Colomer Hernández (2007), p. 70. 15 See Art. 1 Initiative of the Hellenic Republic, cit. 16 Art. 3 Initiative of the Hellenic Republic, cit. 17 Document COM(2005) 696 final of 23 December 2005. On this precedent, see González Cano (2010), pp. 7–12. 18 On this issue, see Morán Martínez (2013), pp. 1005 ff.

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Eurojust and other organic instruments of the EU (mainly the EJN)—in which the competent authorities concerned would examine and decide which one was better placed to prosecute; in the absence of agreement, there was a third phase, in which an EU body, preferably Eurojust, would assist the competent authorities in reaching a consensual solution to the conflict. On this last point, the Commission suggested the possibility that Eurojust could issue a binding decision to resolve the conflict in the absence of agreement between the competent national authorities. This possible additional or fourth phase was conceived as a hypothetical long-term solution, since it was not even considered legally feasible in light of the wording of the TEU in force at that time.19 In order to determine the most suitable jurisdiction, a series of suggestions were made, including the possibility of adopting a new EU provision that would oblige the Member States affected by the conflict to transfer and concentrate the various criminal proceedings in the best placed or principal State. This “best position” would be determined on the strength of certain attribution criteria such as the principle of territoriality or the interests of the victim. At the same time, the need was envisaged for a jurisdictional control of these attribution decisions, both at the national level and, in the event of an EU authority—Eurojust—being finally granted binding powers in the resolution, at supranational level. This supranational judicial control was to be carried out by the Luxembourg Court. Therefore, and although the Green Paper also dedicated an entire section to discussing the scope of the ne bis in idem principle, its bottom-up approach differentiated it from that used in previous proposals, as it stressed resolving the origin of the problem, that is, the possible existence of an eventual conflict between the criminal jurisdictions of two or more Member States. Underlying this was the idea that the rule “first come, first served”, which already prevailed de facto as a viable legal solution in these types of situations, should be replaced by a decision-making procedure in which the criminal jurisdiction and the competent authority should be determined on the basis of their being in the best position for prosecution, and not on who have first issue a final decision. Debates on the Green Paper continued for another 4 years until, as a result of consultations, questionnaires and opinions, the Council put forward a legislative initiative that would culminate in the adoption of the current Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings.20

19 20

Document COM(2005) 696 final,. cit., p. 6. OJ L 328 of 15 December 2009.

2.2

The Framework Decision 2009/948/JHA

2.2.2

39

Procedure

The Framework Decision 2009/948/JHA may be considered a minimal rule. It does not represent much progress in terms of European integration, since it discarded many of the most ambitious proposals and recommendations that the Commission had made with the Green Paper, such as the establishment of binding powers or express references to a supranational judicial review of the decision by the CJEU. In terms of content, Framework Decision 2009/948/JHA has established a conflict prevention and settlement procedure based on two basic principles: the obligation for information to be exchanged between national authorities affected by a situation of conflicting criminal jurisdiction with parallel criminal proceedings, and the need to initiate a mutual consultation procedure to reach an agreement on resolving the issue. This procedure comprises two main phases and a third accessory phase. The first phase should start with the slightest indication or sign that a conflict of criminal jurisdiction could arise. In this event, the national judicial authority is under the obligation to initiate contact with their competent counterparts in the other affected States to confirm that a risk exists, for which they will be able to seek the assistance of the existing cooperation support authorities in the EU, especially Eurojust and the EJN. The obligation to communicate and inform will become evident when an authority ascertains that there is another criminal proceeding pending in another Member State against the same subject and for the same acts— in other words, in the event of parallel proceedings. However, this obligation may also arise by mere knowledge or deduction by the competent authority from information received via different means, as happens, for example, when the investigated or accused person declared this risk during the course of the interrogation, or after receiving a request for judicial assistance or an EIO whose content may coincide, totally or partially, with the investigative measures taken within the national proceedings. Once the existence of parallel proceedings or investigations have been confirmed, the second phase of the procedure will start, in which the authorities involved have the obligation to initiate a direct consultation procedure to try to reach an agreement on the jurisdiction better placed to continue the investigation or prosecution. This includes, if deemed appropriate, a decision on the convenience of concentrating all existing criminal proceedings under the jurisdiction of the State declared to be most suitable for prosecuting. Should no agreement be reached by the authorities themselves on how to proceed, any one of those involved may trigger a third phase in which they shall request the assistance of Eurojust. As we will explain further in the next section, Eurojust has a series of non-binding powers and functions to assist the authorities in resolving the conflict. Nevertheless, the non-binding nature of these functions, as well as the absence of an explicit legal obligation to request Eurojust’s assistance in the absence of an agreement, mean that this phase of the procedure is in reality accessory or optional.

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2.2.3

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EU Legal Framework on Conflicts of Criminal Jurisdiction

Limits and Shortcomings

The procedure established by the Framework Decision 2009/948/JHA shows important shortcomings that make it a potentially ineffective instrument. In relation to the exchange of information, the Framework Decision does not establish a full obligation, as it allows for a number of exceptions that would justify a refusal to share. This will be the case whether in the opinion of the competent national judicial authority, the exchange of information would harm essential national security interests or endanger the safety of individuals. Exceptions are therefore formulated in a broad manner and can only be assessed by the national authority that is theoretically obliged to provide the information, without there being any mechanism that would allow for a possible control of the grounds applied for the refusal. With regard to the criteria that national authorities must consider when determining the most suitable jurisdiction, Framework Decision 2009/948/JHA establishes no list of guiding criteria that could serve as a solid basis for this decision. The only reference that we can find in this regard is among its recitals,21 referring en bloc to the guidelines published in 2003 and updated in 2016 by Eurojust for determining the competent jurisdiction.22 These guidelines can only be considered as a source of soft law, with no real binding legal value. Furthermore, the instrument refers to these guidelines as criteria that “can be taken into account by the authorities”; in other words, it is a recommendation of an optional nature, and as a result nothing prevents the authorities involved from basing their decision on any other interest, reason or factor that does not appear in such guidelines Therefore, national authorities lack a clear frame of reference when weighing up which jurisdiction is in the best position to prosecute. From the point of view of the intervention of the suspect or accused person in the proceedings, the text omits any reference whatsoever to this issue, which in practice is of paramount importance. It does not contemplate any power of intervention by the parties in the prevention and resolution procedure or the possibility of being heard; nor does it expressly recognize the right to appeal against the decision on the conflict adopted by the authorities. These issues are left to the discretion of the Member States by means of their transposition law, with no other limitations than the obligations imposed by respect for fundamental rights recognized at national and European level. This omission also extends to the position of the victim, who in some legal systems—such as the Spanish criminal procedure law—can have the status of plaintiff in the criminal proceedings. With respect to the procedure of reaching an agreement, the authorities are in no way obliged to reach a consensus, nor does Framework Decision 2009/948/JHA 21

See recital 9 Framework Decision 2009/948/JHA, cit. Annex Guidelines for Deciding “Which jurisdiction should prosecute”? of the Eurojust Annual Report 2003, pp. 60–66. They have subsequently been reissued in 2016 in the document Guidelines for deciding “Which Jurisdiction should prosecute”? Revised 2016, DOI 10.2812/29631. 22

2.3

The Role of Eurojust in the Prevention and Settlement of Conflicts. . .

41

contemplate any type of legal consequence—nor disciplinary—for national authorities disregarding the mutual obligation to inform or inability to reach an agreement. Therefore, the Decision relies on the proactiveness and willingness to cooperate on the part of the authorities involved. The conflict of jurisdiction may be prolonged and even persist without a solution being reached, with the parallel proceedings continuing independently and with no other limitation than the general rule regarding the prohibition of ne bis in idem. Nor is there any reference in the Framework Decision to a possible role of the Court of Luxembourg. This omission is understandable in view of an act created under the third pillar, and the fact that at the time this rule was adopted (2009) the Court did not have full jurisdiction over these field. However, it is not appropriate according to the current EU standards. Thus, Framework Decision 2009/948/JHA establishes a procedure based on the obligation of information and consultation, which allows for exceptions in cases that may affect the fundamental interests of national security or endanger people’s safety;23 it lays down no list of its own guiding criteria among the different interests that could be affected and considered for resolving the conflict. This situation allows the competent authorities almost absolute discretion to decide on the conflict, which greatly limits intervention and possible challenges by the parties involved. In other words, the instrument does not provide effective solutions in problematic cases, relying on the proactivity and willingness to cooperate of all the judicial authorities involved, assumptions that do not necessarily have to be met in all cases.

2.3 2.3.1

The Role of Eurojust in the Prevention and Settlement of Conflicts of Jurisdiction Background

Eurojust, as the European Union support agency for judicial cooperation in criminal matters, is in a particularly privileged position as regards detecting cases that could lead to a conflict of jurisdiction between Member States. The establishment of Eurojust in 2002 met the Member States’ need of setting up a centralized body to support the cooperation that assists the national authorities effectively in the fight against the rise of serious transnational crime, without renouncing, at the same time, their will of maintaining the national exercise of ius puniendi and the prevalence of the singularities and prerogatives of each criminal justice system. Such reluctance to cede sovereignty in the field of criminal law, a matter that is especially sensitive in terms of sovereignty, was one of the specific features of the third pillar rules, where Eurojust was established. This approach was first exhibited in the Conclusions of the Tampere Programme and with the 23

Art. 10(3) Framework Decision 2009/948/JHA, cit.

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establishment of Pro-Eurojust, and was thereafter maintained through the dual structure of Eurojust, between the intergovernmental and the European approaches. Therefore, at the operational level, the main structure of the Agency is formed by the national authorities seconded by the different Member States whose legal status and competences are regulated by the national law, as well as by the College of Eurojust, a body formed by all the national members and determined by EU law. The role of Eurojust in the Area of Freedom, Security and Justice has not varied considerably after the application of the new Regulation (EU) 2018/1727.24 Despite of the fact that it eventually recognizes Eurojust’s power of acting on its own in certain circumstances (e.g. the power to issue a written opinion on recurrent refusals or difficulties concerning the execution of requests for judicial cooperation25), this possibility does not seem likely to be extended to the initiation of criminal investigations, which is potentially permitted by Art. 85(1)(a) TFEU in spite of the limits established in Art. 85(2) TFEU. Having said this, the Regulation (EU) 2018/1727 does have comply with the role of adapting the Agency to the new Post-Lisbon scenario by introducing new features that must be seen in a positive light. At the operational level, the direct effect of the regulation will make a homogeneous set of minimum competences to the national members possible, albeit an open clause has been introduced which will allow Member States to extend the competences of their respective national members.26 In short, the European legislator has opted for not exploring the full capacities of the Treaties, since he has preferred to keep Eurojust as a European Union agency that carries on its operational powers horizontally, without recognising Eurojust’s power of exercising vertical powers.

2.3.2

Limited Powers Granted to Eurojust

Primarily, Regulation (UE) 2018/1727 stipulate the obligation of all national authorities in the Member States to inform the Agency of any case in which a conflict of jurisdiction has arisen or is likely to arise.27 This generic and indeterminate duty to inform is extremely important in practice, since early and proper communication of this information to Eurojust will affect the effectiveness of its assistance. However, this duty is often disregarded albeit it cannot be automatically attributed to a conscious neglect by the national authorities of their obligation to report. Actually, identifying a case that could potentially lead to a conflict of criminal jurisdiction

24

OJ L 295 of 21 November 2018. Art. 4(5) Regulation (EU) 2018/1727, cit. 26 Art. 8(2) Regulation (EU) 2018/1727, cit. This provision, which in principle should be considered positive, can become unwieldy because it may again cause the recognition of an asymmetric and heterogeneous set of competences for the different national members. 27 Art. 21(6)(a) Regulation (UE) 2018/1727. 25

2.3

The Role of Eurojust in the Prevention and Settlement of Conflicts. . .

43

requires evidence that permits the authority to conclude that the risk exists, and this can become particularly complex if prior to this there is no effective channel of information between authorities. Apart from this duty to report, Eurojust has specific powers and functions geared towards collaboration in preventing and resolving conflicts of jurisdiction. Accordingly, any of the authorities involved can request the active assistance of Eurojust in a potentially conflictive case, a function which can be exercised via different channels: 1. Through the figure of the national members of the States involved, which as part of the individual powers granted to them can request the authorities of their own Member State to recognize that one of them is better placed to carry out investigations or prosecute specific criminal acts.28 Although this function can be exercised by the national members only with respect to their national authorities, lately joint recommendations are being used with great success; this practice consists of the coordinated action of all national members involved in a case of conflict of jurisdiction to issue a consensus recommendation on the case to their respective national authorities.29 2. Through the College of Eurojust, acting as a collegiate body made up of all national members, which may either request this recognition similarly to the activity carried out individually by national members described above.30 3. Exceptionally, and, in the absence of an agreement between the national authorities and the national members involved, the College of Eurojust may issue a non-binding written opinion on the matter to be forwarded to all interested Member States. This last option, considered an ultima ratio mechanism, has never been applied. At first glance, it could seem that this last power is no more than the reissue and updating of the power that was already granted in Art. 7(2) of the consolidated version of the Eurojust Decision31 after the amendment made in 2008 by Council

28

Art. 4(2)(b) Regulation (EU) 2018/1727, cit. This solution arose from an actual Eurojust case involving Spain and Italy in 2016. Since then, ‘joint recommendations’ have become very popular and widely accepted by the national authorities of the Member States. A reference to this practice can be found in Report on Eurojust’s casework in the field of prevention and resolution of conflicts of jurisdiction (updated 2018), DOI:10.2812/ 03988, p. 8. 30 Art. 5(2) Regulation (EU) 2018/1727, cit. This power, as it was then granted by Art. 7(1)(a) (ii) Decision 2002/187/JHA (consolidated version), was used in the Prestige case, where the criminal liability arising from the environmental damage caused by the sinking and spill of a tanker close to the Spanish and French coasts led to the opening of criminal proceedings in both jurisdictions. In this case, it was decided to transfer the French proceedings opened in the court of Brest in favour of the Spanish jurisdiction on the basis of the Eurojust recommendation. 31 According to the statistics and records published by Eurojust, the exclusive power granted to the College of Eurojust recognised in Article 7 (2) of the Decision 2002/187/JHA (consolidated version) had never been exercised. Actually, this power has been often confused with the exercise of the powers entrusted individually to the national members by Art. 6.1(a)(ii) and, especially, with 29

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Decision 2009/426/JHA.32 This article established, literally and plainly, that these opinions were not binding on the national authorities of the Member States. However, we find no trace of this categorical statement within the articles of the new Regulation, which omits to pronounce on their binding or non-binding nature. Instead, the Eurojust Regulation now establishes that the Member States may refuse to follow the solution or recommendation on the case contained in these written opinions when this would harm essential national security interests, would jeopardise the success of an ongoing investigation or would jeopardise the safety of an individual.33 After a reading a sensu contrario, we may infer that the general rule applicable from the date of application Regulation (EU) 2018/1727 is that the Member States have the duty to follow the solution proposed in these opinions by Eurojust, and that only exceptionally may they refuse to implement it whether one of the three reasons set out above applies. In short, it could be interpreted that the written opinions of Eurojust should be understood as binding as a general rule, since the national authorities may only depart from these opinions invoking one of the exceptional grounds expressly foreseen. This preliminary conclusion, to which we could enthusiastically subscribe after a first reading of the provision, must be immediately qualified after a joint interpretation of the whole text. Firstly, the wording of the Regulation (EU) 2018/1727 itself prevents such an interpretation. Although it does not state this in its articles, it does indicate in its recitals that the written opinions of Eurojust are not binding on the Member States, although they must be responded to.34 Having said this, the question arises as to the legal value we should give to the provisions of this recital. According to the doctrine35 and the case law of the CJEU36 on the legal value of recitals in Union acts, although they do not have binding legal value and cannot be invoked to derogate the provisions of the act they accompany, they are essential for its interpretation.37 It therefore seems that the European legislator’s intention is to maintain the non-binding nature of Eurojust’s opinions, even if it has decided to use for this

the power of the College established in Art. 7.1(a)(ii) of the Decision 2002/187/JHA. See Document of the Council 11260/15 of 29 July 2015, Evaluation of the Eurojust Council Decision and of the activities carried out by Eurojust - Final Report. 32 OJ L 138 of 4 June 2009. 33 Art. 4(6) Regulation (EU) 2018/1727, cit. These grounds coincide with those already laid down in Art. 8(i) and (ii) in conjunction with Art. 7(a)(ii) of the original 2002 Eurojust Decision, which allowed national authorities who decided not to follow the request of the College of Eurojust to be exempted from the obligation to give reasons for their decision. The amendment made by Decision 2009/426/JHA eliminated these grounds, making the reasoning a general obligation. Miranda Rodrigues (2013), p. 54. 34 See recital 14 Regulation (EU) 2018/1727, cit. 35 Klimas and Vaičiukaité (2008), pp. 63–92. 36 Cf. CJEU Nilsson y otros, C-162/97, 19 November 1998, EU:C:1998:554, § 54. 37 Cf. CJEU PF, C-509/18, cit., §§ 23 and 35; Milev, C-310/18 PPU, 11 May 2018, EU:C:2018:732, §§ 1, 31 and 38.

2.3

The Role of Eurojust in the Prevention and Settlement of Conflicts. . .

45

purpose such a sparse statement inserted in the more than 70 recitals contained in Regulation (EU) 2018/1727. However, what cannot be accepted is that the wording given to the recitals of a Union act should lead to an interpretation which is manifestly contrary to the provisions of its operative part. In this sense, a formalistic reading of the terms of Article 4(6) of the Regulation (EU) 2018/1727 leads us to appreciate that there is an apparent contradiction between this provision and the recital 14: if the written opinions of Eurojust are never binding on the Member States, it makes no sense to establish a list of exceptional grounds for rejecting Eurojust’s opinion since, in all cases, the Member States may decide to disregard the opinion of Eurojust discretionally. Secondly, even if we were to disregard the provisions of the previous recital and interpret Eurojust’s written opinions as binding, as a general rule, on the national authorities concerned, we would have to accept that the exceptional grounds for a national authority to depart from the solution proposed by Eurojust in its opinion as set out in the Regulation are deliberately ambiguous, and that their occurrence can only be properly assessed at national level. The assessment by a national authority of an overriding national security interest, whatever it may be, can hardly be disputed by a European agency. Similarly, the existence of a risk endangering the success of the investigation or the physical integrity of, for example, the victim of the crime, are circumstances that only the national authority is in a position to weigh in the proper light of all the circumstances of the case. In short, the assessment of the existence of the exceptional causes recognised by the new Regulation as grounds justifying the non-application of the solution proposed by Eurojust in its opinion will depend, practically exclusively, on the criterion of the national authority that alleges it, without, in our opinion, Eurojust having any real margin of appreciation and discussion. Having said all this, we have to conclude that the Regulation (EU) 2018/1727 maintains the non-binding nature of the written opinions issued by Eurojust. However, we believe that the purpose of all the amendments introduced is to require that, in the event that a competent national authority decides not to follow Eurojust’s opinion, it should be obliged not only to inform Eurojust of its decision and the reasons for it, but also to subsume these reasons in one of the three grounds for justification—national security, success of the investigation, safety of individuals— prescribed by the Regulation. In other words, although compliance with the opinion remains optional, national authorities are now obliged to give a special reasoning for their decision whether they decide to depart from Eurojust’s criteria, which will logically act as a deterrent measure. Therefore, the current role of Eurojust in resolving conflicts of criminal jurisdiction between Member States is quite similar to that of a simple mediator between the positions of the national authorities involved,38 with the limited power to issue a non-binding opinion on which of these is better placed to investigate and prosecute a

38

In this sense, Weyembergh (2011), pp. 75–99.

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specific case. Consequently, the national authorities involved are not obliged to respect the recommendation issued by Eurojust, nor to follow its guidelines; they do, however, have the obligation, should there be deviation from the solution proposed by the Agency, to communicate the reasons for their decision not to follow its recommendation.

2.3.3

Eurojust’s Guidelines for Deciding on Jurisdiction

As part of its role in the prevention and resolution of conflicts of jurisdiction, Eurojust considered it appropriate to publish a list of guidelines to be considered when determining which of all the authorities affected by a conflict of jurisdiction is best placed to prosecute. In other words, these guidelines are intended to determine which is the principal jurisdiction in accordance with each specific case and, consequently, should exercise authority to the detriment of the others. This list, published for the first time in the 2003 Eurojust Annual Report,39 took into consideration legitimate interests of a very diverse nature: from the principle of territoriality to the interests of the victim. However, it does not establish any type of priority among the different criteria mentioned; therefore, the specific importance of each in resolving the conflict must be determined on a case-by-case basis. Although it may seem reasonable that the list of criteria does not establish any order of preference in terms of greater adaptability and flexibility for the specific needs of each issue, it is likewise apparent that the total absence of gauging or hierarchy, leaving this task to the discretion of the competent authorities involved, may lead to divergent solutions in apparently identical cases, which could jeopardize the principle of legal certainty. This list has subsequently been updated. In its 2016 Annual Report, Eurojust has reissued the original list of guidelines to adapt them to current needs;40 consequently, they continue to serve as a guide for judicial authorities in determining the competent jurisdiction. The updated guidelines published and applied by Eurojust are as follows: 1. Principle of territoriality: prosecution should take place in the jurisdiction in which the majority—or the most important part—of the criminality occurred or in which the majority—or the most important part—of the loss was sustained. 2. Location of the suspect or accused person: a number of elements can be considered in connection with this factor, such as the place in which he/she was found, the nationality or usual place of residence, the connection or interest with one Member State, the possibility of securing the surrender or the possibility to transferring the proceedings to the jurisdiction where he is located.

39 40

Eurojust Annual Report 2003, pp. 60–66. Eurojust Annual Report 2016, pp. 55–58.

2.3

The Role of Eurojust in the Prevention and Settlement of Conflicts. . .

47

3. Availability and admissibility of evidence: The location and availability of evidence in the proper form as well as its admissibility and acceptance by the court should be considered. The quantity and quality of the evidence in the concerned Member States should also be taken into account, but bearing in mind the existence of mutual recognition instruments like the EIO that would facilitate this task. 4. Gathering of testimonies from witnesses, experts and victims: including, if necessary, the availability for them to travel to another jurisdiction to give that evidence, and also of receiving their evidence in written form or by other means (e.g. by telephone or videoconference). 5. Witness protection: the possibility of one jurisdiction being able to offer a witness protection programme, while another jurisdiction has no such possibility, could be used as a factor to decide on the conflict. 6. Interests of victims: it must be taken into account the significant interests of victims, including their protection, and whether they would be prejudiced if any prosecution were to take place in one jurisdiction rather than another (e.g. the possibility of victims claiming compensation). This factor should be applied in accordance with Directive 2012/29/EU on victims’ rights.41 7. Stage of criminal proceedings: whether an investigation is in an advanced stage in one jurisdiction, transferring the case to another jurisdiction might not seem appropriate 8. Length of criminal proceedings: despite it should not be a determining factor, it could be considered when other factors are balanced. 9. Legal requirements in each jurisdiction: can be taken into account, but they may not be used as a means of avoiding with existing legal obligations that apply in one jurisdiction. 10. Sentencing powers: judicial authorities should not seek to prosecute in the jurisdiction which have potentially higher penalties nor bearing in mind the relative sentencing powers of courts. 11. Proceeds of crime: although it should be taken into account, authorities should not decide to prosecute in one jurisdiction rather than another only because such prosecution would result in a more effective recovery of the proceeds of crime. 12. Cost and resources: the associate costs of prosecuting the case cannot be a decisive factor, except when the other factors are balanced 13. Criminal policy priorities: a case cannot be rejected on the grounds that it is nor considered a priority in a Member State. The wording of some factors is particularly paradoxical (e.g. length of criminal proceedings and cost and resources), as it implies having to assess, for each factual situation, the possible existence of a balance between the rest of factors applied. Bearing in mind that there is no any hierarchy or ranking between them, authorities must refrain from making any kind of qualitative assessment, so that the balance

41

OJ L 315 of 14 November 2012,

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must be determined on the basis of a purely quantitative criterion; that is, the net result of the comparison between the total number of factors applied in favour of one jurisdiction and the other. At all events, it should be noted that despite having been formulated by a body with the specialization and authority in this area that Eurojust can boast, these guidelines cannot be considered more than a source of soft law,42 with no legally binding effect for national authorities. Notwithstanding, they remain today the principal reference in this area at EU level, as a result of which they are essential for the current model of prevention and settlement of conflicts of jurisdiction in the Union and are in practice widely applied by national authorities as a guideline in decision making.

2.4 2.4.1

Lack of EU Instruments for Transfer of Criminal Proceedings The Concentration of Proceedings as an Ideal Procedural Solution

The aim of the procedure for resolving conflicts of criminal jurisdiction analyzed above is essentially to ensure that the national authorities involved are the ones which, on their own initiative, agree on the best placed jurisdiction to go ahead with the proceedings. However, regulation of this procedure is limited to the establishing of certain rules on the nature of the consultation and consensus-seeking procedure, with scant attention paid to the way forward or, in other words, the ideal procedural instrument for applying the solution adopted by this agreement. Among the different options to be considered, the following may be highlighted: 1. Deciding on a delimiting of investigations that prevents their concurrence. In practice, this would consist of dividing the investigation of a case into several more specific investigations; for example, focusing on the aspects of the crime most closely associated with each of the Member States involved. Logically, applying this solution will only be possible in investigations which, by their very nature, are likely to be limited in this way. However, if authorities are faced with a situation in which there are different criminal proceedings already pending, subdividing the case may be a much less feasible solution in procedural terms, especially in Member States strongly bound by the principle of legality, which prevents the discretionary waiving of the prosecution of certain criminal acts. Therefore, the dividing up of concurrent criminal investigations as a possible solution to the conflict has limited scope and effectiveness.

42

We share the same view of Ligeti (2016), p. 14.

2.4

Lack of EU Instruments for Transfer of Criminal Proceedings

49

2. Promoting the setting up of a Joint Investigation Team (JIT).43 A JIT has many benefits as a possible solution to the conflict. First, all the authorities belonging to the team are empowered to act in the States where the investigation is undertaken. This, however, is in accordance with the limits established by the agreement and with due respect for the legislation of the Member State in which the activities take place. Likewise, the information obtained by the members of a joint investigation team can be legitimately used for the purposes for which the team was created; in other words, the evidence collected by means of a JIT can be used in all investigations related with the latter which are carried out in each participating Member State. Ultimately, the JIT represents an advanced, useful cooperation tool, but with certain disadvantages. The main disadvantage is the difficulty involved in setting it up, since it requires a detailed agreement defining the functions of the competent authorities. This agreement must, in turn, be ratified by the competent authority, which varies in each Member State in accordance with the provisions of the means of transfer in the Framework Decision on the JIT. As can be seen, the JIT is a cooperation tool that requires a specific and somewhat rigid procedure of establishment if it is to work effectively.44 Furthermore, although it provides numerous procedural advantages and encourages close judicial cooperation between the national authorities involved, it would not provide per se a solution in the event of concurrence between criminal investigations resulting from the JIT itself, unless by the express defining of jurisdiction envisaged in the agreement. 3. Considering that it is not possible to punish the same person for the same actions in each Member State (prohibition of ne bis in idem), the most appropriate procedural solution in all cases is concentrating all existing parallel proceedings within the jurisdiction deemed competent. This solution is referred to specifically in Framework Decision 2009/948/JHA.45 However, at no time is there explicit mention of how this transfer of proceedings should be carried out. The reason for this omission could be justified by two different approaches, both of which are actually erroneous. First, it could be interpreted that the EU legislator assumed that the transmission of criminal proceedings can be done purely and simply by applying the principle of mutual recognition. From the point of view of the Member States whose criminal proceedings are strictly governed by the principle of criminal legality—as is the case in the Spanish system—this justification must be rejected. The reasons underlying this rejection are that the transfer of a criminal proceeding in favour of another Member State implies, firstly and directly, that the requested Member State abandons the criminal prosecution of the punishable act; this situation would not be

43

On this instrument, see De Amicis (2019), pp. 273–276; Spapens (2011), pp. 239–260. Hernández López (2022), pp. 263–289. 45 See Arts. 10 and 13 Framework Decision 2009/948/JHA, cit. 44

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permitted by virtue of the strict application of the principle of legality, unless under the umbrella of a legal provision enabling it. Secondly, and as a consequence of the foregoing, waiving criminal prosecution implies a transfer of sovereignty, which cannot be protected under the cloak of the principle of mutual recognition. The latter, therefore, cannot in itself serve as a “legal umbrella” for transferring sovereignty, waiving the investigation and prosecution of certain actions and the subsequent transmission of criminal proceedings, without there previously being a legal provision that allows it; or, what is the same in this particular case, a specific instrument of the Union for transferring criminal proceedings between Member States. Second, it could be assumed that the EU legislator did not include in Framework Decision 2009/948/JHA any provision as to how the transfer of criminal proceedings should be performed due to an existing specific rule applicable at EU level. Unfortunately, despite the fact that there was a first attempt at an agreement in 1990 among the Member States of the then European Communities for the transmission of criminal proceedings—which never came into force46—and that an initiative was issued for the adoption of a Framework Decision on this matter47—which was abandoned after the enforcement of the Treaty of Lisbon—the reality is that neither was there then nor is there nowadays a specific legal instrument in the Union that regulates the transfer of criminal proceedings between Member States, albeit it is true that the Commission has recently launched a new initiative on this matter in order to propose a text before the end of 2022.48 There is, therefore, a regulatory gap in Union law, which obliges the national authorities involved in a conflict to resort, case by case, to solutions under the auspices of conventional international law for this transfer.

2.4.2

Transfer of Criminal Proceedings Provided by International Law

Having ruled out the existence of a legal framework at EU level devoted to transfer of criminal proceedings, we do have at regional level a specific instrument created within the Council of Europe: the European Convention on the transfer of criminal

46

Agreement between the Member States of the European Communities on the Transfer of Proceedings in Criminal Matters, of 6 November 1990 (not published in OJ). A reference to this agreement could be observed in Klip (2009), p. 364 and footnote 241. 47 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Lithuania, the Republic of Latvia, the Republic of Hungary, the Kingdom of the Netherlands, Romania, the Republic of Slovenia, the Slovak Republic and the Kingdom of Sweden with a view to a Council Framework Decision 2009/. . ./JHA of . . . on the transfer of proceedings in criminal matters (OJ C 219 of 12 September 2009). 48 See Call for Evidence for an impact assessment of the initiative on judicial cooperation in criminal matters—transfer of proceedings (common rules) [Document Ref. Ares(2021)7026778].

2.4

Lack of EU Instruments for Transfer of Criminal Proceedings

51

proceedings.49 This international agreement recognizes both the possibility of transferring criminal proceedings already ongoing between States parties, as well as that of that a State party with jurisdiction to prosecute a specific criminal conduct waiving domestic investigation, on condition that a final decision has not been issued on the same matter in another State party. However, the enforcement of this Convention is in practice problematic for various reasons, as a result of which its potential application is greatly diminished. First of all, its scope of application is very restricted, as only 13 Member States of the 27 have ratified it. Although Spain is one of the former, among those absent are the most important countries in the EU in terms of population, such as Germany, France or Italy, and, from the point of view of possible border and strategic interests for Spain, Portugal. Secondly, it is an agreement that came into force at the end of the seventies and which, therefore, is out of touch with current European reality. In this regard, there has been an exponential development of the integration process. The EU has now its own AFSJ without internal border controls and a judicial cooperation in criminal matters based on the principle of mutual recognition. It is, in other words, an outdated agreement which is not very flexible in terms of mutual assistance, and is based on outdated principles of cooperation, such as mandatory transmission between central authorities instead of direct transmission between competent authorities currently prevailing between Member States. It is worth considering whether the transfer of a criminal proceeding in these terms also constitutes a transfer of jurisdiction. From the Spanish point of view,50 we must bear in mind the provisions of Arts. 65(3) and 88 LOPJ, which establish that any question entailing a transfer of jurisdiction in criminal matters arising from compliance with international treaties ratified by Spain shall be decided by the Criminal Chamber of the National High Court. Nonetheless, the Plenary of the Chamber has declined this exclusive competence,51 stating that the decision on the transfer of jurisdiction to other States, under the European Convention on the Transfer of Proceedings in Criminal Matters, is the responsibility of the Central Investigating Court or the Section of the Criminal Chamber, before which the proceedings are pending. The Plenary reached this conclusion after interpreting that, for it to be applied, Art. 65(3) LOPJ requires the transfer of jurisdiction in criminal matters to result from compliance with international treaties to which Spain is a party, citing as an example the case of Art. 39 of the Agreement between the Kingdom of Spain and the USA on defense cooperation,52 which provides for the waiver of criminal jurisdiction. Furthermore, continuing with the interpretation of the Chamber, the European

49

European Convention on the Transfer of Proceedings in Criminal Matters (Strasbourg, 15 May 1972). 50 See the observations made on this issue by Jiménez-Villarejo Fernández (2015), p. 71. 51 See AAN 79/2014, 15 December 2014. 52 Agreement of Defense Cooperation between the USA and the Kingdom of Spain with Annexes and Notes (Madrid, 1 December 1988).

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Convention on the Transfer of Proceedings in Criminal Matters is an instrument of multilateral international judicial cooperation between the States party of the Council of Europe that have ratified it and, therefore, applicable between parties should it be required. We disagree with this view because the aforementioned European Convention on the Transfer of Criminal Proceedings is a multilateral international treaty adopted under the auspicious of a regional international organization such as the Council of Europe, which is not comparable with an EU instrument or mechanism. Consequently, considering that the waiving of proceedings and subsequent transmission in favour of the jurisdiction of another State effectively implies the transfer of jurisdiction in criminal matters, the application of Art. 65(3) LOPJ shall be also mandatory. In other words, competence shall be granted to the Criminal Chamber of the National High Court for any appraisal of and decision on the transfer of criminal proceedings, even if this occurs under the 1972 Agreement on Transfer of Criminal Proceedings. Although this interpretation seems ineffective and totally counterproductive in terms of promoting judicial cooperation between States, we consider it is in line with the current Spanish law.53 Hence, due to the doubts raised by the application of this instrument, practitioners advise against and avoids its use even in the limited cases in which it could be applicable. Instead, the use of another instrument, the so-called laying information in connection with proceedings referred to in Article 21 of the 1959 European Convention on Judicial Cooperation in Criminal Matters,54 is recommended. Briefly, this provision makes it possible to apprise another State party of the possible commission of a criminal act, so that the requested State may open criminal proceedings, since the latter would originally have criminal jurisdiction in this regard. The use of this instrument instead of the European Convention for Transmission of Criminal Proceedings has the main advantage of having been ratified by all EU Member States and, therefore, it does not raise any issue regarding the extent of its scope of application. In terms of its possible obsolescence and lack of adaptation to the current legal activity, it must be borne in mind that it was created at the end of the 1950s. Although it may be concluded that it is a somewhat outdated expedient, it has a differential edge over the European Convention on the Transfer of Criminal Proceedings, namely, its supplementary nature with regard to the 2000 Convention on Mutual Assistance in Criminal Matters between Member States.55 This latter Convention establishes, in Art. 1, its complementary relationship with the provisions of the 1959 Convention, whilst logically applying much more modern principles, such 53

In this sense, cf. STS n. 118/2014, 18 February 2014, ES:TS:2014:765, FJ 3°; STS n. 828/2015, 14 December 2015, ES:TS:2015:5245, FJ 2°. However, it would be advisable to modify the provision in order to update and adapt it to current supranational reality, thus avoiding divergent interpretations that could give rise to future jurisdiction and competence issues between Spanish courts. 54 European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 20 April 1959). 55 OJ C 197, 12 July 2000.

2.4

Lack of EU Instruments for Transfer of Criminal Proceedings

53

as direct transmission between competent authorities instead of between central authorities. In this regard, Art. 6(1) of the Convention 2000 specifically enables direct transmission between authorities in cases involving the application of Art. 21 of the 1959 Convention. By means of this solution, authorities in the Member States have been able to provide legal cover, applicable throughout the whole of the EU, to the transmission of criminal proceedings. However, this interpretation of the provisions of both conventions raises numerous legal uncertainties concerning their valid application in such cases. With the means in question, the national authorities of the Member States are obliged to jointly interpret and apply several international instruments simultaneously so as to legally uphold the transferring of criminal proceedings without having to resort to transfer between central authorities. We must admit that there is no legal impediment regarding its use, since the 2000 Convention expressly provides for this possibility, although it seems to us that this solution is impractical and can clearly be improved from a technical point of view. Even more dubious from the procedural law perspective is the use of the aforementioned laying information in connection with proceedings of Art. 21 as a legal basis for transmission of criminal proceedings. As we noted earlier, this instrument, included in the 1959 Convention, is originally designed to initiate criminal proceedings ex novo in the courts of another State party. This restrictive interpretation is not only based on the wording of the provision itself, but is also supported by the provisions of the Explanatory Report to the Convention,56 which clarifies that Article 21 enables any State party to request another State party to institute proceedings against and individual in particular where a person, having committed an offence in the requesting country, takes refuge in the territory of the requested country and cannot be extradited. Furthermore, a transfer of proceedings usually entails a case in which the national authorities do have jurisdiction over the criminal act committed and, consequently, there may be a pending criminal proceeding, so that when transmission takes place the exercising of this jurisdiction is also waived (e.g., pending criminal proceedings on drug trafficking in Spain against A, whereas in Italy there is a broader ongoing proceeding covering the entire network of the criminal organization to which the latter belongs). In the light of these examples, it can be said that we are dealing with radically different situations, and therefore we must consider that the use of Art. 21 as a means of legally endorsing the transfer of criminal proceedings between EU Member States is a procedurally debatable expedient. This is because this extensive, if not openly contrived, interpretation of an instrument whose purpose does not effectively encompass a transfer of criminal proceedings, is being rejected by case law in certain circumstances. An example of this is the legal argument has been used by some case law in Spain.57 Notwithstanding, it is true that an extensive interpretation of

56

See Explanatory Report to the European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 20 April 1959). 57 Cf. AAP Pontevedra 284/2016, 2 May 2016.

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Article 21 has traditionally been accepted and applied by both our national authorities and those of other Member States,58 usually with the approval and recommendation of Eurojust and the EJN. Finally, another possible way to transfer criminal proceedings is to invoke the United Nations Convention against Transnational Organized Crime.59 However, as this is a very specific international instrument restricted to certain types of crime, it cannot be considered a generally applicable solution.

2.5

Implementation into National Law: The Spanish and Italian Examples

The effectiveness of the Framework Decision 2009/948/JHA depends to a large extent on the implementation into national law made by each Member State. As is well known, this kind of instrument is binding as to the result to be achieved (aim), but leaves discretion to how to achieve the result (means), so that the asymmetry between the different national law on this matter may be of importance. For this reason, the analysis of some examples of national transposition of the EU rules on conflicts of jurisdiction and the different formulas used at the national level is relevant to any new proposals on this matter. Hence, in the following sections, we are going to explain the main features of the transposition laws of two Member States: Spain (Law 16/201560) and Italy (Legislative Decree 29/201661).

2.5.1

Procedure Acting as Contacting Authority

2.5.1.1

Spain

The Spanish authority that sees evidence of the existence of another proceeding in another Member State against the same person in respect of the same facts must, in the first place, contact directly the competent authority in that State.62 The law sets a maximum time-limit of 15 days for initiating contact from the time when the existence of a possible conflict of jurisdiction is noted in the Spanish proceedings.63

58

See Explanatory Report to the European Convention on Mutual Assistance in Criminal Matters, cit., p. 11. 59 United Nations Convention against Transnational Organized Crime (New York, 15 November 2000). 60 Ley 16/2015 (OJ n. 168 of 8 July 2015). 61 Decreto Legislativo 15 February 2016, n. 29 (OJ n. 55 of 7 March 2016). 62 Art. 30(1) Ley 16/2015, cit. 63 Art. 30(4) Ley 16/2015, cit.

2.5

Implementation into National Law: The Spanish and Italian Examples

55

In practice, this time limit is dispositive, since it will be the Spanish authority who will assess, in the light of the evidence, indications and information available, whether the necessary requirements for initiating this contact have been met.64 Consequently, the appropriate procedural moment to initiate contact will vary from case to case. The duty to send this request for contact will not be enforceable if the foreign authority has already been informed by other means (e.g. by means of a previous request for judicial assistance). As for the competence to send the request for contact, the law empowers both the judicial authority and the Public Prosecutor’s Office.65 The request, in the event that it is issued by the judicial authority, will be adopted by means of a reasoned order which must be issued after hearing the Public Prosecutor and other parties, who will have a period of 2 days to argue about the terms in which the request should be formulated.66 If contact is to be initiated by the prosecutor, it will be agreed by decree.67 The request must include a series of minimum information:68 (a) A detailed description of the facts and circumstances that are the subject of the criminal proceedings or of the investigative measures in Spain; (b) The legal classification of the conduct subsumable to those facts according to Spanish criminal law; (c) Personal details of the accused or accused person and their personal situation—if he/she remain in custody—as well as the precautionary measures adopted; (d) If applicable, personal details of the victims and the protection measures adopted; (e) Contact details of the competent Spanish judicial authority, as well as the possibility of also including the contact details of Union bodies specialised in cooperation—European Judicial Network, National Member of Eurojust; (f) Optionally, additional information about the evidence or proceedings carried out or the difficulties encountered or foreseen. The secrecy of the judicial proceedings cannot be an obstacle to the facilitation of the information described above. Therefore and the exchange of information may only be restricted when it could affect fundamental interests of national security or when there is a danger to the security of individuals.

64

Hernández López (2017), pp. 117–127. Art. 30(2) Ley 16/2015, cit. 66 Art. 30(7) Ley 16/2015, cit. 67 Art. 30(8) Ley 16/2015, cit. 68 Art. 30(5) Ley 16/2015, cit. 65

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Italy

In Italy, the competent authorities are the Ministry of Justice and the judicial authority according to the regime of powers of the law itself.69 If the competent Italian judicial authority sees grounds indicating the existence of parallel proceedings in another Member State, it is obliged to contact the competent judicial authority of the Member State concerned in writing in order to verify this risk.70 If it does not know the contact details of the competent authority to be contacted, it may request the assistance of the EJN. The Italian transposition law does not set any deadline for issuing such a request. The request for contact must contain, at least, the following information:71 the indication of the competent authority; description of the facts and circumstances that are the subject of the criminal proceedings; identification data of the investigated or accused person or of the person offended or harmed by the offence; stage and status of the criminal proceedings; precautionary measures imposed on the suspect or accused person; any other information deemed appropriate.

2.5.2

Procedure Acting as Contacted Authority

2.5.2.1

Spain

In the event that the Spanish authority receives a request for contact, it is obliged to respond by any means that leaves a written record,72 even in those cases in which it considers that it lacks competence. In the latter case, it must forward the request to the Spanish authority which it considers to be competent, informing both the sending authority and the national member of Eurojust of the transmission and providing the contact details of the Spanish authority to which the request was transmitted.73 The reply shall answer to the information requested by the applicant authority unless, once again, there are sufficient grounds for believing that providing this information would harm essential national security interests or endanger the safety of individuals, in which case the reply shall state that one of these exceptions applies.74 One of the novelties of Law 16/2015 compared to the minimum standard set by Framework Decision 2009/948/JHA is the imposition on our authorities of relatively short deadlines for replying to the request. The Framework Decision did not establish maximum deadlines, referring to the deadline, within reason, that each

69

Art. 3 Decreto Legislativo 15 February 2016, n. 29. Art. 4 Decreto Legislativo 15 February 2016, n. 29. 71 Art. 6 Decreto Legislativo 15 February 2016, n. 29. 72 Art. 31(1) Ley 16/2015, cit. 73 Art. 31(4) Ley 16/2015, cit. 74 Art. 31(3) Ley 16/2015, cit. 70

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authority indicated in its request or, failing that, referring to the legally indeterminate formula “without undue delay”. Spanish national law has gone a step further, establishing that, in the absence of an indicative time limit, it shall be understood to be set at a maximum of 15 days from receipt of the request.75 This time limit may be exceeded, provided that the delay is justified and the requesting authority is informed of this fact, and the Spanish authority must indicate a new indicative time limit that may never exceed a further month or only 15 days in the event that the request is urgent76 (e.g. if the suspected or accused is in a situation of deprivation of liberty). From a procedural point of view, once the Spanish judicial authority has received the request, it must forward it to the Public Prosecutor and the other parties to the proceedings so that they may present their arguments within 10 days on the terms in which it should be answered, and it will decide by means of an order within the following 5 days.77 If the request is urgent because the suspect or accused person is in a situation of deprivation of liberty, the deadline for replying is reduced to 5 days, with a prior hearing of the Public Prosecutor and other parties. If the request was referred to the prosecutor and the latter is competent, the Spanish law simply indicates that it will be responsible for answering the request,78 without detailing the form, procedure or act to be used, a vagueness that contrasts with the general thoroughness of the law.

2.5.2.2

Italy

In the event that the Italian authority receives a request for contact from another Member State to confirm the possible existence of parallel criminal proceedings, the Italian authority shall respond within the deadline indicated by the issuing authority or, failing that, without undue delay.79 If the investigated or accused person is in pre-trial detention, it shall be dealt with as a matter of urgency.80 If the Italian judicial authority is unable to reply within the time limit indicated by the issuing authority, it must communicate without delay the reasons and indicate a new deadline for replying.81 Therefore, the Italian transposing law does not set a specific deadline for replying, but uses the same indeterminate wording already used in European legislation.

Art. 31(1) in fine Ley 16/2015, cit. Art. 31(2) Ley 16/2015, cit. 77 Art. 31(5) Ley 16/2015, cit. 78 Art. 31(6) Ley 16/2015, cit. 79 Art. 5(1) Decreto Legislativo 15 February 2016, n. 29. 80 Art. 5(1) in fine Decreto Legislativo 15 February 2016, n. 29. 81 Art. 5(2) Decreto Legislativo 15 February 2016, n. 29. 75 76

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If the Italian authority does not have competence over the case, it shall, without undue delay, transmit the request to the Italian judicial authority that does have jurisdiction, informing the issuing authority of such transmission.82 The reply of the Italian authority shall contain at least the following information (without prejudice, therefore, to the possibility to provide further information):83 (a) If criminal proceedings are ongoing or have already been completed against the same person for all or some of the facts that are the subject of the criminal proceedings abroad. (b) Indication of the competent authority. (c) Stage and status of the criminal proceedings and, where adopted, decision on the procedure.

2.5.3

Agreement on the Settlement of the Conflict

2.5.3.1

Spain

Once direct contact has been established, and in the event that the existence of a conflict of jurisdiction is confirmed, the Spanish law establishes the procedure to be followed by our authorities to try to reach a consensus with the authorities of the other Member States concerned. In the case of a judicial authority, it will consider whether or not it is appropriate to concentrate all the existing criminal proceedings in a single State and will mention the criteria that support this decision, hearing both the Public Prosecutor and the other parties involved for a common period of 10 days.84 Following this hearing, an attempt should be made to reach a consensus with the competent authority of the other Member State on how to proceed. In the event of failure to reach a consensus, the law provides for the possibility of calling on the assistance of Eurojust to try to resolve the conflict, provided that the case in question falls within the Agency’s sphere of competence.85 Once this point has been reached, Eurojust will make use of its powers, first trying to reach a consensus through the national members of the Member States concerned and, in the absence of agreement between them, the Spanish national authority may request the Spanish national member to refer the case to the College of Eurojust for the issuance of a non-binding opinion on the solution to the conflict. Once the opinion has been received, the public prosecutor and other parties must be heard within 5 days of receipt, and the judicial authority must decide within the following 5 days, by means of an order, whether or not to continue the proceedings

82

Art. 5(3) Decreto Legislativo 15 February 2016, n. 29. Art. 7 Decreto Legislativo 15 February 2016, n. 29. 84 Art. 32(1) Ley 16/2015. 85 Art. 32(2) Ley 16/2015, cit. 83

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before the Spanish jurisdiction.86 If the recommendation proposed by Eurojust is not followed, the Spanish judicial authority must give reasons in the order deciding whether or not to continue the proceedings before Spanish jurisdiction. This obligation to give reasons is not specifically envisaged in the Spanish law, but it must be understood to be required by direct application of the Eurojust Regulation.87 Any of the ordinary appeals provided for in the Spanish LECrim may be lodged against this decision, which will be processed preferentially and without suspensive effect. In those limited cases in which the decision of the conflict depends on the public prosecutor, it will resolve the matter by means of a reasoned decree, communicating the decision to the persons under investigation and other interested parties, who may oppose the solution adopted by going to the competent examining magistrate or juvenile judge, as appropriate.88 Another aspect of Law 16/2015 that goes beyond the provisions of Framework Decision 2009/948/JHA is the inclusion of some guiding criteria that the Spanish judicial authority must consider when making the final decision on the resolution of the conflict. The list is set as follows:89 (a) Place of habitual and national residence of the person investigated/defendant; (b) Place where most of the criminal offence has been committed; (c) Jurisdiction according to whose rules the evidence has been obtained or place where it is most likely to be obtained; (d) Interest of the victim; (e) Place where the proceeds or effects of the crime are located and the jurisdiction at whose request they have been secured for the criminal proceedings; (f) Stage of the criminal proceedings in each Member State; (g) Definition of the offence and penalty in the criminal legislation of the various Member States involved. These criteria, based on the Eurojust guidelines, take into account different variables and interests but, once again, no scale or hierarchy is established, forcing Spanish authorities to consider their reasonable weight in the conflict on a case-by-case basis.

2.5.3.2

Italy

Once contact between competent judicial authorities has been established, it is for the Procuratore Generale presso la Corte di Appello in the district where the Italian judicial authority acting as a passive or active party to the proceedings has its seat to

86

Art. 32(4) Ley 16/2015, cit. Art. 4(6) and recital 14 Regulation (EU) 2018/1727, cit. When the Spanish Ley 16/2015 was adopted the Eurojust Regulation did not exist, but this duty to state reasons of its decision was also imposed by Art. 8 Decision 2002/187/JHA (consolidated version), cit. 88 Art. 32(6) Ley 16/2015, cit. 89 Art. 32(5) Ley 16/2015, cit. 87

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establish direct consultations with a view to assessing the suitability of concentrating the parallel proceedings in a single Member State.90 The direct consultation procedure is initiated once the existence of parallel proceedings has been identified. The Procuratore Generale shall initiate the direct consultations and inform the Minister of Justice, sending him the relevant documentation and his own observations.91 The Minister of Justice may, within 10 days of receiving the communication, order that the concentration of proceedings in another Member State shall not be pursued if it is established that, as a result of the failure of Italy to exercise jurisdiction, security or other essential national interests could be compromised.92 During direct consultations, the Procuratore Generale shall exchange with the competent authority of the other Member State concerned information on any act of procedural relevance. However, he may refuse to transmit specific information where such communication could endanger essential Italian national security interests or the safety of a person.93 The Procuratore Generale shall take into account the following criteria when deciding on the conflict:94 (a) (b) (c) (d) (e) (f) (g)

The place where most of the action, omission or event occurred; Location where most of the damage occurred; Place where the investigated or accused person resides, stays or is domiciled; More favourable prospects for surrender or extradition in other jurisdictions; Greater protection for the offended party or less sacrifice for witnesses; Homogeneity of punitive treatment; Any other factors deemed relevant.

The Italian law therefore establishes a series of criteria for attribution, without establishing any hierarchy between them and without distinguishing between criteria to be considered and criteria to be avoided. One of the strengths of the Italian transposition law is the regulation of the effects of the initiation of the decision procedure, which the Framework Decision does not expressly foresee. According to the Italian law, the initiation of the direct consultation procedure does not automatically lead per se to the suspension of the criminal proceedings, but the judge shall not issue a final judgment on the case.95 This prohibition—which shall actually lead to the suspension of proceedings—may not exceed 20 days, and the Procuratore Generale must be notified immediately.96

90

Art. 8(1) Decreto Legislativo 15 February 2016, n. 29. Art. 8(2) Decreto Legislativo 15 February 2016, n. 29. 92 Art. 8(3) Decreto Legislativo 15 February 2016, n. 29. 93 Art. 8(5) Decreto Legislativo 15 February 2016, n. 29. 94 Art. 8(4) Decreto Legislativo 15 February 2016, n. 29. 95 Art. 10(1) Decreto Legislativo 15 February 2016, n. 29. 96 Art. 10(2) Decreto Legislativo 15 February 2016, n. 29. 91

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With regard to the effects of the possible decision to concentrate criminal proceedings, Italian law differentiates according to whether it is the national or foreign jurisdiction that receives the transferred proceedings. In the first case, it establishes that the period of pre-trial detention served abroad shall be deducted in accordance with the Italian Code of Criminal Procedure and that the evidence produced abroad will maintain their effectiveness and will be usable according to Italian law.97 In the second case, once the agreement to concentrate proceedings in another State has been adopted, the Italian judge will declare the case inadmissible.98 In any case, the Procuratore Generale presso di la Corte di Apello shall inform the Minister of Justice of the outcome of the direct consultation procedure.99

2.5.4

Referring the Case to Eurojust

2.5.4.1

Spain

In addition to the conflict resolution procedure, Spanish law regulates the procedure to be followed by national authorities to comply with a request by the national member at Eurojust, his deputy or his assistants to accept that an authority of another Member State is in a better position to undertake the investigation or prosecution of specific acts.100 In these cases, the Public Prosecutor’s Office will be competent to receive these requests. The General Prosecutor (Fiscal General del Estado) will decide whether the request is admissible within 10 days and will issue the appropriate instructions for the Public Prosecutor to instigate the relevant proceedings before the competent judge. In the event that the request cannot be complied with or cannot be answered within the deadline, the reasons for the delay or refusal must be communicated without delay, except in the event that doing so may harm fundamental interests of national security or endanger the investigation or the safety of persons, in which case reasons may be given based on such circumstances.101 If the information provided in Eurojust’s request is considered insufficient for a decision to be taken, the national member may be requested to complete the information.102 In the event that another Member State has agreed to transfer a procedure initiated in its country to Spain as a result of having determined that our authorities are in a better position to investigate or prosecute, the College of Eurojust or the Spanish national member will urge the competent Spanish authorities to take over this

97

Art. 11(1) Decreto Legislativo 15 February 2016, n. 29. Art. 11(2) Decreto Legislativo 15 February 2016, n. 29. 99 Art. 11(3) Decreto Legislativo 15 February 2016, n. 29. 100 Carmona Ruano (2018), p. 137. 101 Art. 22(2) Ley 16/2015, cit. 102 Art. 22(2) § 2 Ley 16/2015, cit. 98

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investigation. If compliance with such a request requires the initiation of new proceedings in Spain, the request must be sent to the General Prosecutor Office’s103 in the same terms described above, and the request may only be acceded to if the Spanish jurisdiction can be exercised over the acts and provided that they are not time-barred under Spanish law.104 Once the initiation or extension of proceedings has been accepted—in the latter case, this will only be possible if the state of the Spanish judicial proceedings so permits105—all investigative measures carried out in the transferring State will be considered valid in Spain, provided that they do not contradict fundamental principles of the Spanish legal system.106 If the offence can only be prosecuted in Spain at the request of a party, all investigative measures initiated in the sending Member State will also be considered valid, provided that the person who must prosecute in Spain accepts this and files the corresponding complaint.107 This provision of the Spanish law allows for the transfer of criminal proceedings to Spain. However, it is silent on the reverse, that is, the transfer of criminal proceedings already initiated in Spain to the jurisdiction of another Member State when both States may exercise jurisdiction over the same acts.

2.5.4.2

Italy

The Italian law limits itself here to stating that any of the competent authorities involved in the direct consultation procedure, whether national or foreign, may refer the question of the resolution of the conflict of jurisdiction to Eurojust in accordance with Art. 4 Council Decision 2002/187/JHA.108 The latter reference should be

Art. 27(1) in fine Ley 16/2015, cit. Art. 27(3) Ley 16/2015, cit. 105 Art. 27(2) Ley 16/2015, cit. 106 Art. 27(4) Ley 16/2015, cit. The exclusion of unlawful evidence in Spain was traditionally designed as a constitutional procedural safeguard of the right to a due process of law enshrined in Art. 24(2) of the Spanish Constitution. Following the recent case law of the Spanish Supreme and Constitutional Courts (cf. STS 471/2017, of 23 February, ES:TS:2017:471; STC 97/2019, 16 July,ES:TC:2019:89) a weighting of evidence judgment must be aimed at ensuring the equality of the parties for a fair trial. Consequently, it should be determined primarily what is the nature of the unlawful acquisition of evidence (infra-constitutional or constitutional), since only in the latter case illicit evidence exists. After this examination, it is necessary to determine the connection of the procedural rights of the parties from the perspective of the right to a fair trial, by means of two control parameters. The first (internal) is aimed at analysing whether the violation of the fundamental right has been instrumental, that is, whether the intention to obtain evidence has been outside the requisite constitutional channels. The second parameter (external) aims to assess the existence of general requirements for preventing or discouraging the consummated violation projected onto criminal proceedings. 107 Art. 27(4) in fine Ley 16/2015, cit. 108 Art. 9 Decreto Legislativo 15 February 2016, n. 29. 103 104

References

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understood as being made to the current Art. 3 Regulation (EU) 2018/1727, which establishes the Eurojust’s scope of competence.

References Biehler A, Kniebühler R, Lelieur J, Stein S (eds) (2003) Freiburg proposal on concurrent jurisdictions and the prohibition of multiple prosecutions in the European Union. Max-Planck-Institut für ausländisches und internationales Strafrecht, Freiburg Carmona Ruano M (2018) Prevention and settlement of conflicts of jurisdiction (Spanish System). In: Ligeti K, Klip A, Vervaele JAE, Robinson G (eds) Preventing and resolving conflicts of jurisdiction in EU criminal law: a European Law Institute Instrument. Oxford University Press, Oxford, pp 119–139 Colomer Hernández I (2007) Conflictos de jurisdicción, non bis in idem y litispendencia internacional en la Unión Europea. In: Arroyo Zapatero L, Nieto Martín A (coords) El principio de “ne bis in idem” en el derecho penal europeo e internacional. Ediciones de la Universidad de Castilla-La Mancha, Cuenca, pp 65–93 De Amicis G (2019) Horizontal cooperation. In: Kostoris R (ed) Handbook of European criminal procedure. Springer, Cham, pp 249–278 Delmas-Marty M, Vervaele JAE (2000) The implementation of the Corpus Juris in the Member States: penal provisions for the protection of European finances, vol I, III. Intersentia, Antwerpen González Cano MI (2010) La Decisión marco 2009/948/JAI del Consejo, de 30 de noviembre de 2009, sobre prevención y resolución de conflictos de jurisdicción en procesos penales. Revista Unión Europea Aranzadi 4:especially pp 7–23 Hernández López, A. (2017), “Los conflictos de jurisdicción penal en el ámbito de la UE. Situación en España tras la Ley 16/2015”, in Fuentes Soriano, O., El proceso penal: Cuestiones fundamentales, Valencia: Tirant lo Blanch, pp. 117-127. Hernández López A (2018) Garantías procesales en la prevención y resolución de conflictos de jurisdicción penal: marco normativo en la UE y perspectivas de futuro. In: Arangüena Fanego C, De Hoyos Sancho M (dirs), Vidal Fernández B (coord) Garantías procesales de investigados y acusados. Situación actual en el ámbito de la Unión Europea. Tirant lo Blanch, Valencia, pp 461–492 Hernández López A (2022) El equipo conjunto de investigación como instrumento en la lucha contra el crimen organizado en la era de la digitalización. In: Garrido Carrillo F (dir), Faggiani V (coord) Lucha contra la criminalidad organizada y cooperación judicial en la UE. Thomson Reuters-Aranzadi, Cizur Menor, pp 263–289 Jiménez Piernas C, Crespo Navarro E (2011) El Derecho originario de la UE. In: Beneyto Pérez JM (dir), Maillo González-Orus J, Becerril Atienza B (coords) Tratado de Derecho y Políticas de la Unión Europea. Volume IV. Las fuentes y principios del Derecho de la Unión Europea. Thomson Reuters-Aranzadi, Cizur Menor, pp 175–212 Jiménez-Villarejo Fernández F (2015) Memoria Anual del Miembro Nacional de España en Eurojust 2015 Klimas T, Vaičiukaité J (2008) The law of recitals in European Community Legislation. ILSA J Int Comp Law 15(1):63–92 Klip A (2009) European criminal law. Intersentia, Antwerp Ligeti K (2016) Eurojust News. Issue 4, January Miranda Rodrigues A (2013) Conflitos de jurisdição no espaço comum europeu: O papel da Eurojust na construção de soluções. Revista Portuguesa de Ciência Criminal 23(1):45–62

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Morán Martínez RA (2013) Conflictos de jurisdicción, “ne bis in idem” y transferencia de procedimientos. In: Carmona Ruano M, Gónzalez Vega I, Moreno Catena V (dir), Arnáiz Serrano A (coord) Cooperación Judicial en Europa. Dykinson, Madrid, pp 999–1049 Peers S (2016) Jurisdiction, coordination, and prosecution. In: Peers S (ed) EU justice and home affairs law: volume II: EU criminal law, policing and civil law. Oxford EU Law Library, Oxford Spapens T (2011) Joint investigation teams in the European Union: Article 13 JITS and the alternatives. Eur J Crim Crim Law Crim Just 19:239–260 Wasmeier, M. (2018), “The legal basis for preventing and resolving conflicts of criminal jurisdiction in the TFEU“, in Ligeti, K., Klip, A., Vervaele, J.A.E and Robinson G., Preventing and resolving conflicts of jurisdiction in EU criminal law: a European Law Institute Instrument, Oxford: Oxford University Press, pp. 100-118. Weyembergh A (2011) The development of Eurojust: potential and limitations of Article 85 of the TFEU. N J Eur Crim Law 2(1):75–99

Further Reading Amalfitano C (2006) Conflitti di giurisdizione e riconoscimento delle decisioni penali nell’Unione europea. Giuffrè, Milano Klip A (2016) European criminal law. Intersentia, Antwerp Thorhauer NI (2015) Conflicts of jurisdiction in cross-border criminal cases in the area of freedom, security, and justice: risks and opportunities from an individual rights-oriented perspective. N J Eur Crim Law 6(1)

Chapter 3

Conflicts of Jurisdiction and Due Process of Law

3.1

Introduction

Among the negative consequences stemming from the existence of a conflict of criminal jurisdiction, one of the main concerns is the possible violation of the rights and procedural safeguards of the subjects involved in the conflict, especially with regard to the rights of the investigated or accused person. In this sense, the key issue to be answered is how can a minimum standard of protection of the safeguards of suspected and accused persons involved in parallel proceedings be guaranteed in these conditions. Procedural rights and safeguards in criminal proceedings are still enshrined and protected in first instance by the national legal systems of the Member States themselves, as they are the foundations of due process and fair trial that must be provided for in any modern rule of law. Logically, this recognition is not identical in all national legal systems. Despite they share a common legal tradition and values, the protection standards, the intensity, the modalities and limits of the exercise of those rights are far from equal. These standards vary according to the national principles of criminal procedure law, frequently enshrined as fundamental rights, and the interpretation of the same by the case-law of the national High and Constitutional Courts.1 Nonetheless, to ensure that an AFSJ based on mutual trust and the application of the principle of mutual recognition works properly, there must be a common minimum standard of protection of these rights and safeguards that allows the

1

On the relationship between national legal systems and EU procedural rights development, see Mitsilegas (2016), pp. 153–184.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 A. Hernández López, Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU, Comparative, European and International Criminal Justice 3, https://doi.org/10.1007/978-3-031-15691-5_3

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existing differences between the different systems to be circumvented.2 This does not imply that the degree of recognition must be identical in all the Member States since, among other problems, there is a risk of harmonisation towards the lowest common standard. But there must be a comparable degree of protection, an ambitious objective that is being developed in the EU through the approximation and harmonization of national legal systems through Directives—the “successful” Stockholm Roadmap3—, in conjunction with the case-law of the ECJ, closely bound by the jurisprudence of the ECtHR on this matter.4 In fact, the fundamental rights enshrined in the ECHR, just like those resulting from the constitutional traditions common to the Member States, shall constitute general principles of the EU’s law according to the primary law.5 In any case, we should not forget that all Member States are signatories and therefore are bound by the provisions contained in the main international human rights instruments, such as the ICCPR, the ECHR and, in the specific field of application of Union law, by the CFREU, which is fully binding following its inclusion in the primary law after the entry into force of the Lisbon Treaty.6 In fact, the fundamental rights guaranteed by the ECHR, and as they result from the constitutional traditions common to the Member States, are considered to be general principles of Union law.7 Furthermore, the Treaties provide for the future accession of the Union itself to the ECHR8 albeit in practice such accession is at a standstill sine die.9 However, despite the fact that all EU Member States are parties to the ECHR, the degree of compliance by States is not perfect, far from being homogeneous,10 as proved by the number of judgments of the Strasbourg Court condemning EU Member States. Thus, the analysys of the case law of the ECtHR and the CJEU is crucial for the understanding of the scope of these rights and safegaurds, and is particularly useful in cases with cross-border elements, as is often the case in a

2

For an in-depth reflection on this issue, see the reasoning made by De Hoyos Sancho, M., “Armonización de los procesos penales, reconocimiento mutuo y garantías esenciales”, in De Hoyos Sancho (2009), pp. 69 ff. 3 Action plan implementing the Stockholm Programme (OJ C 115, 4 May 2010). 4 See Art. 52(3) CFREU. Hernández López (2019a), pp. 1–16. 5 Art. 6(3) TEU. 6 Art. 6(1) TEU. 7 Art. 6(3) TEU. 8 Art. 6(2) TEU. 9 Following the publication of Opinion 2/13 of the CJEU (Full Court) of 18 December 2014, EU: C:2014:2454, which found that the draft accession agreement then being negotiated by the Commission was not compatible with EU law. The position of the CJEU on this issue has been strongly criticised by the doctrine, which considers that the Luxembourg court has sought to seek its hegemony in the interpretation of fundamental rights applied in the EU legal order to the detriment of close cooperation with the ECtHR. On this issue, see Martín y Pérez de Nanclares (2015), pp. 825–869. 10 Arangüena Fanego (2019), p. 7.

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The ne bis in idem Principle

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situation of conflict of criminal jurisdiction. From this perspective, in the following lines we will analyse the main rights and safeguards of due process that are at risk of violation when a positive conflict of criminal jurisdiction arises.

3.2

The ne bis in idem Principle

The first risk for the investigated or accused person that the existence of two or more criminal proceedings against him represents is the alleged violation of his right to not to be tried—and convicted—multiple times for the commission of the same criminal offence. Otherwise, it would entail a breach of the so-called ne bis in idem11 principle. The ne bis in idem principle, also known as the prohibition of double jeopardy, it could be currently considered as one of the main and primary principles of criminal law enshrined in the vast majority of national legal systems. The main purpose of this principle is to avoid double criminalization and punishment, an action that would be extremely disproportional and, ultimately, to guarantee the principle of personal legal certainty, closely related to the effects of res iudicata (pro veritate habitur).12 Derived from the ancient Roman law principle nemo debet bis vexari pro una et eadam causa 13—no one shall be tried twice for the same cause—, it has been assimilated by the legal tradition of most States and is now widely recognised at the international level. Consequently, it forms part of the catalogue of rights enshrined in the main international human rights instruments: Art. 14(7) of the ICCPR guarantees that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”;14 the American Convention on Human Rights (ACHR),15 commonly known as the Pact of San José, establishes in its Art. 8(4) that “An accused person acquitted by a non appealable judgment shall not be 11

The Latin name for this principle is not unanimous in European doctrine and jurisprudence, which oscillates between the use of the expressions ne bis in idem and non bis in idem to refer to the same principle. While in the European sphere the use of the terminology ne bis in idem predominates, in the Spanish context the term non bis in idem is used, which is considered to be more in line with the original Latin etymology. However, and due to the European framework in which this research is situated, we have opted to use the expression ne bis in idem conventionally. On the etymology of the principle, see López Barja De Quiroga (2004), pp. 14–17.; López Barja De Quiroga (2019), pp. 350–354. Defending a contrary interpretation, in favour of the use of the term “ne bis in idem”, Van Bockel (2010), p. 31, footnote 89; Muñoz Clares and Caballero Salinas (2019), pp. 283–285. 12 In this sense Lelieur (2013), pp. 198–210. 13 This is the opinion of Conway (2003), p. 221. 14 International Covenant on Civil and Political Rights (New York, 18 December 1966. In force since 3 January 1976). 15 American Convention on Human Rights, (San José, 22 November 1969. In force since 18 July 1978).

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subjected to a new trial for the same cause”; within the Council of Europe, the seventh protocol to the ECHR16 enshrines this principle in Art. 4, stating that No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

It is also widely recognised by national legal systems, both by constitutional norms and by procedural and substantive criminal laws, as is the case in Germany—§ 103(3) Grundgesetz—, in France—Art. 6 Code de Procedure Pénale— or in the Netherlands17—§ 68 Wetboek van Strafrecht—. In Spain, surprisingly, our Constitution of 1978 does not expressly include it among the catalogue of fundamental rights. However, the Constitutional Court, from its earliest case-law, has affirmed and recognised its full validity and application in Spain as one of the multiple manifestations of the principle of criminal legality, enshrined in Article 25(1) of the Spanish Constitution.18 Having said this, it should be pointed out that its recognition was undoubtedly guaranteed even without the aforementioned jurisprudential recognition, since all the international instruments validly ratified by Spain and, in a particularly qualified manner, those whose object refers to human rights and freedoms, such as the ICCPR and the ECHR, must be considered full part of our internal legal order in compliance with the provisions of Arts. 10(2) and 96(1) of the Spanish Constitution. At the same time, it does have express recognition in non-constitutional provisions of the Spanish legal system.19

3.2.1

National Dimension

Notwithstanding the above, it should be noted that the content and scope of the ne bis in idem principle enshrined in the national and international provisions mentioned above only refers to what it is called the “national” or “domestic” dimension of the principle. In other words, the aspect of the principle that prohibits double jeopardy and double punishment against the same person for the same acts within a single national jurisdiction. This national dimension not only applies to criminal 16

Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, (Strasbourg, 22 November 1984. In force since 1 November 1988). 17 Klip and Van der Wilt (2002), pp. 1091–1137. 18 Cf. STC 2/1981, 24 February 1981, ES:TC:1981:2, FJ 4: “The general principle of law known as non bis in idem supposes, in one of its best known manifestations, that there should be no duplicity of sanctions -administrative and criminal- in cases in which the identity of the subject, fact and basis is appreciated (. . .) although it is not expressly included in Arts. 14 to 30 of the Constitution (. . .) it is intimately linked to the principles of legality and criminalisation of offences, mainly included in Art. 25 of the Constitution”. 14 to 30 of the Constitution (. . .) it is intimately linked to the principles of legality and typicity of offences, mainly contained in Art. 25 of the Constitution”. In this sense, Gimeno Sendra (2007), pp. 1855–1861. 19 E.g. Art. 23.2 c) LOPJ.

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proceedings stricto sensu, but also—and particularly in practice—to duplication of criminal and administrative proceedings and penalties when the latter shall be considered of a criminal nature (the double-track enforcement systems used by some Member States). In this sense, the case law held by the European Court of Human Rights20 and later followed by the CJEU21 have declared that the accumulation at the internal level of administrative penalties of a criminal nature and purely criminal penalties against the same person for the same acts also represents a violation of the national dimension of the ne bis in idem principle. However, this case law has recently experienced an important change following ECtHR A and B v. Norway,22 in which the Strasbourg Court, on the occasion of a VAT fraud case, legitimized the possibility of imposing both administrative and criminal sanctions on the same person regarding the same acts, provided there is an adequate material and temporal connection (in substance and in time) between both procedures (administrative and criminal). This interpretation was then adopted and adapted to EU law by the CJEU on Menci, in which the Luxembourg Court admitted the possibility of imposing a criminal penalty and an administrative sanction of a criminal nature against a same person for the same acts provided that the applicable national legislation is clear and pursues an objective of general interest, the sanctions have complementary purposes and contains rules ensuring coordination between the different proceedings and that the severity of all of the penalties imposed is proportional and limited to what is strictly necessary in relation to the seriousness of the offence concerned.23 However, this national dimension of the principle does not cover the possible application of the effects of the ne bis in idem to those situations arising from multiple and/or parallel prosecutions conducted by the authorities of several States in different criminal jurisdictions. It is this second “international” or “transnational” dimension of the principle that exceeds the national boundaries and really transcends the European scope of this work; specifically, it is this latter dimension that leads to a possible violation of this principle because of a positive conflict of jurisdiction between two or more Member States of the European Union.

20

Cf. ECtHR Lauko v. Slovakia, 2 September 1988, CE:ECHR:1998:0902JUD002613895; Jussila v. Finlandia, 23 November 2006, CE:ECHR:2006:1123JUD007305301; Zolotukhin c. Rusia, 10 February 2009, CE:ECHR:2009:0210JUD001493903; Maresti c. Croacia, 25 June 2009, CE: ECHR:2009:0625JUD005575907; Grande Stevens and Others v. Italy, 4 March 2014, CE: ECHR:2014:0304JUD001864010. 21 CJEU Åkerberg Fransson, C-617/10, 26 February 2013, EU:C:2013:105; Orsi and Baldetti, C-217/15 and C-350/15, 5 April 2017, EU:C:2017:264. 22 ECtHR A and B v. Norway, 15 November 2016, CE:ECHR:2016:1115JUD002413011. 23 CCJEU Menci, C-524/15, 20 March 2018, EU:C:2018:197. On the same day, two other judgments related to the application of the national dimension of the ne bis in idem principle were issued: CJEU Garlsson Real Estate and others, C-537/16, 20 March 2018, EU:C:2018:193; Di Puma and Zecca, C-596/16 and C-597/16, 20 March 2018, EU:C:2018:192, dealing with the cumulation of administrative and criminal sanctions in relation to competition law sanctions. For a full analysis of this case law, see Hernández López (2019b), pp. 286–304.

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Transnational Dimension

In contrast to the national dimension, the transnational dimension of the ne bis in idem principle has been gradually developed in Europe since the middle of the second half of the twentieth century. At the regional level, within the Council of Europe, the 1972 Convention on the Transfer of Criminal Proceedings envisaged this problem, warning the Contracting Parties in Article 30 that it was impossible to conduct two parallel proceedings on the same person and the same acts. In the context of the Member States of the European Communities, the first major attempt at specific regulation of the ne bis in idem principle in its transnational dimension is to be found in the adoption of the Convention on the application of the ne bis in idem principle of 1987, which was scarcely ratified.24 Currently, the transnational dimension of the ne bis in idem principle has been fully assimilated by EU law, mainly through Article 54 of the CISA25 and the interpretation of its scope and its elements that is continually developed by the case law of the CJEU.26 Thus, on the interpretation of the concept of “same acts” (idem element of the principle), the CJEU has declared that it must be interpreted as identity of material facts, or the existence of a set of facts indissolubly linked to each other (e.g. drug trafficking offences, smuggling), regardless of their legal classification or the legal interest protected.27 This interpretation excludes those cases in which the relationship between the different allegedly punishable acts committed in different States is not sufficiently solid, since it is based solely on the existence of the same criminal intent28 (e.g. laundering of money from a drug trafficking offence). With regard to the consideration of the existence of a “final decision” that prevents a subsequent decision on the same acts (element bis of the principle), the

24

Convention on the application of the ne bis in idem principle, cit. According to Vervaele, the Schengen Implementing Convention can be considered as the first multilateral convention recognising the international ne bis in idem principle as an individual right erga omnes, albeit limited to the Schengen area. See Vervaele (2013), pp. 211–229. 26 Cf. CJEU Gözutök and Brügge, C-187/01 and C-385/01, 11 February 2003, EU:C:2003:87; Miraglia, C-469/03, 10 March 2005, EU:C:2005:156; Van Esbroeck, C-436/04, 9 March 2006, EU: C:2006:165; Gasparini, C-467/04, 28 September 2006, EU:C:2006:610; Van Straaten, C-150/05, 28 September 2006, EU:C:2006:614; Kretzinger, C-288/05, 18 July 2007, EU:C:2007:441; Kraaijenbrink, C-367/05, 18 July 2007, EU:C:2007:444; Bourquain, C-297/07, 11 December 2008, EU:C:2008:708; Turansky, C-491/07 of 22 December 2008, EU:C:2008:768; Mantello, C-261/09, 16 November 2010, EU:C:2010:683; M., C-398/12, 5 June 2014, EU:C:2014:1057; Spasic, C-129/14 PPU, 27 May 2014, EU:C:2014:586; Kossowski, C-486/14, 29 June 2016, EU: C:2016:483. On the case law of the CJEU on the interpretation of the elements of the ne bis in idem principle derived from Art. 54 CISA, see Rafaraci (2010), pp. 126–140; Costa Ramos (2009), pp. 206–311; López Barja De Quiroga (2019), pp. 417–434. 27 Cf. CJEU Van Esbroeck, cit. paras 25–42; Van Straaten, cit. paras 40–53; Gasparini, cit. paragraphs 53-57; Kretzinger, cit. paragraphs 28–37. 28 Cf. CJEU Kraaijenbrink, cit. paragraphs 23–36. 25

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The ne bis in idem Principle

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Court of Justice of the European Union has had to rule on numerous occasions, interpreting this element extensively to cover other types of national decisions that may have the effects of res judicata. According to the CJEU, a decision may be qualified as a final judgment within the meaning of Art. 54 CISA when it terminates the criminal proceedings and definitively bar further prosecution.29 Thus, this provision also applies to other final decisions not subject to appeal—excluding possible extraordinary remedies—such as out-of-court settlements made by the Public Prosecutor's Office which bar the prosecution,30 orders provisionally dismissing the case for lack of evidence31 and, of course, a final acquittal,32 including those based on an assessment that the offence is time-barred in one of the Member States concerned.33 On the other hand, the Luxembourg Court did not regard as a final decision in light of Art. 54 CISA the discontinuation of the proceedings or of the investigation without an examination or assessment of the merits of the case,34 or the discontinuation of criminal proceedings by a police authority which does not definitively bars further prosecution.35 Similarly, it appears as a ground for non-recognition and/or non-enforcement in specific EU mutual recognition instruments.36 In this regard, the CJEU has ruled on the interpretation of the element “same facts” contained in the mandatory ground for refusal based on the ne bis in idem of Art. 3(2) of the 2002 Framework Decision on EAW, equating it to the interpretation used for Art. 54 CISA.37 Furthermore, it has clarified that a person who intervenes as a witness in an investigation that has been definitively closed does not meet the requirement of having been finally judged and can therefore be investigated and prosecuted within new criminal proceedings on the same acts in another Member State.38 Such is the recognition that the transnational dimension of the ne bis in idem principle has acquired in the Union that it has been elevated to the category of fundamental right by virtue of Art. 50 of the CFREU. However, despite the fact that

29

Cf. e.g. CJEU Turansky, cit. paragraph 34; M, cit. paragraph 32; Kossowski, cit. cit., paragraphs 34. 30 Cf. CJEU Gözutök and Brügge, cit. paragraphs 25–48. 31 Cf. CJEU M, cit. paragraphs 26–42. 32 Cf. CJEU Van Straaten, cit. paragraphs 54–61. 33 Cf. CJEU Gasparini, cit. paragraphs 22–33. 34 Cf. CJEU Miraglia, cit. paragraphs 28–35; Kossowski, cit. paragraphs 31–54. 35 Cf. CJEU Turansky, cit., paragraphs 30–45. 36 E.g. Article 3(2) of Framework Decision 2002/584/JHA, cit.; Article 7(1)(c) of Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property or evidence (OJ L 196 of 2 August 2003); Article 9.1(c) of Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or other measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ L 327, 5 December 2008); more recently and specifically, Art. 11(1)(d) of Directive 2014/41/EU, cit. See Lupária (2017), pp. 35–44. 37 Cf. CJEU Mantello, cit. paragraphs 38–41. 38 Cf CJEU AY, C-268/17, 25 July 2018, EU:C:2018:317, paragraphs 38–46.

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both Art. 54 CISA and Art. 50 CFREU enshrine the transnational dimension of the principle within the EU, they seem to differ in its limits and scope. In the case of Art. 54 CISA, it protects anyone who has been tried by final judgment in one State from being prosecuted in another State, provided that, if convicted, the sentence has been executed, is being executed or cannot be executed under the law of the State of origin or, in other words, the principle is subject to a condition of enforcement.39 Article 50 of the Charter, on the other hand, guarantees that no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he has already been finally acquitted or convicted within the Union in accordance with the law, without claiming any further limitation or requirement as to its enforcement or execution. The apparent divergence between the two provisions has led to preliminary ruling requests to questioning on the mutual compatibility of their wordings.40 This discrepancy has been resolved, once again, thanks to the interpretation of the CJEU expressed in its judgment in the Spasic41 case, in which the Luxembourg Court has stated the compatibility of both provisions—Art. 54 CISA and Art. 50 CFREU—in their scope of application within the AFSJ. Certainly, the proper application of this principle is a key issue for the prevention and resolution of conflicts of criminal jurisdiction between Member States. It is with good reason that this principle might act as a last resort mechanism to settle the conflict, since the prohibition of double jeopardy and double punishment prevents any jurisdiction from prosecuting the same person for the same criminal acts once a final decision has been disposed against the same person for the same criminal acts in any other Member State. This implies, in practice, that in a case of conflict of criminal jurisdiction, the principle would act not only as a safeguard for the suspected and accused person, but also as a sort of “first come first served” rule for the national authorities, in which the jurisdiction that first concludes the criminal proceedings shall become, no matter the result, the only competent criminal jurisdiction. This would lead to an unintended use of the ne bis in idem principle, neither as a right or safeguard for individuals nor as a limit to the exercise of the ius puniendi of national authorities, but as a mere prior in tempore potior in iure sort of rule to settle the conflict of criminal jurisdiction, which incentivises national authorities to be the first to start prosecuting in order to early assume the competence over the case. The

39

On the scope of the enforcement condition of Art. 54 CISA, Cf. CJEU Kretzinger, cit., paragraphs 38–66; Bourquain, cit. paragraphs 33–52. 40 Reference for a preliminary ruling from the Oberlandesgericht Nürnberg in the following terms: “Is Article 54 of the CISA compatible with Article 50 of the Charter in so far as it makes the application of the principle of non bis in idem subject to the condition that, in the case of a conviction, the penalty has been executed, is being executed or can no longer be executed under the law of the convicting State? 41 Cf. CJEU Spasic, cit. The Court holds, in essence, that the limitations provided for in Art. 54 CISA on the ne bis in idem principle relating to the condition of enforcement are compatible with the non-limiting wording enshrined in Art. 50 of the CFREU. On the implications of this judgment, see Vervaele (2015), pp. 1139–1160.

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Right to Be Heard by a Court Previously Established by Law

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latter is an example of the undesired consequences of the principle, as it prevents the national authorities from weighing up all the relevant factors and merits of the case to reach a due solution after considering all the interests of the parties involved.42 Having said that, the main positive aspect that this application of the principle represents from the suspected and accused’s safeguards perspective is that it would always act, in a transnational prosecution context, as an absolute guarantee that he/she should not be cumulatively punished in the Union for the same criminal acts.

3.3

Right to Be Heard by a Court Previously Established by Law

As has become clear from the analysis of the legal framework, the current model for resolving conflicts of jurisdiction in the EU is not based on the prior determination of the competent jurisdiction, but on the search for an agreement between the national authorities involved to determine which of them is in the best position to undertake the investigation or prosecution. Reaching this agreement, as well as the solution to be adopted, is the responsibility of the national authorities involved in the conflict themselves. Moreover, except for the soft law guidelines issued by Eurojust in 2003 and revised in 2016, there are no homogeneous criteria at the European level, nor a hierarchical list of factors applicable in a binding manner to the circumstances of each case to achieve this consensus. Hence, the allocation of jurisdiction and, subsequently, the determination of the competent judicial authority to investigate and prosecute the investigated or accused person, would almost exclusively depend on the opinion and goodwill of the national authorities involved in the conflict, with hardly any possibility for the parties to participate in the settlement procedure. The fact that the determination of jurisdiction, and therefore of the judicial body competent to investigate and prosecute, depends almost exclusively on the will of the national authorities involved, without their decision being conditioned or limited by the existence of hierarchical connecting criteria, makes it impossible for the outcome of that decision to be reasonably foreseeable before the commission of the criminal act. The configuration of such a method of settlement of conflicts makes it possible that, given two substantially identical cases, the final decisions on which jurisdiction should undertake the investigation or prosecution could be completely opposite, since it may be based on the application of a diverse kind of criteria and connecting factors, or a different weighing of the interests at stake by the national authorities involved. There is also no real possibility for the defendant or accused to argue that interpretation,43 since there are not homogeneous jurisprudential criteria

42

In the same vein, Ouwerkerk (2011), p. 277. Although the suspect or accused person affected by such a decision will, as a general rule - despite the fact that Framework Decision 2009/948/JHA omits to pronounce on this aspect - have the

43

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of interpretation. In conclusion, it is not only feasible, but highly possible that the individual cannot know, prior to the alleged commission of the punishable act, or even once criminal proceedings have been instituted against him, which judicial authority or State will ultimately be competent to prosecute him.44 In fact, according to the current legal framework, the suspected person may not even know that a procedure for the settlement of the conflict of jurisdiction is being carried out, especially if the final decision on the best jurisdiction to prosecute has been reached at an early stage of the transnational criminal investigation and the proceedings have been declared secret.45 This may happen, for instance, following a recommendation made by Eurojust after a coordination meeting held in The Hague by the national judicial authorities and the representatives of Eurojust involved, where often the suspected or accused person is not even aware that he/she is being investigated and, consequently, has no opportunity to participate in the settlement procedure and in the agreement on the choice of forum. This scenario governed by uncertainty not only undermines the principle of equality of arms in criminal proceedings, but also entails a breach of the principle of legal certainty. It is nearly impossible for the suspected or accused person affected by the conflict to reasonably foresee what the direction of the final decision of the judicial authorities on the allocation of the competent jurisdiction could be, and it also makes extremely challenging to appeal against the decision in a satisfactory manner whether such a possibility is provided for in national law. In our view, this lack of legal certainty does not meet the standard of the right to be heard by a court previously established by law as enshrined in Art. 47 of the Charter, Art. 6(1) ECHR and the national provisions on the same subject—e.g. Art. 24(2) Spanish Constitution—.

possibility of appealing it internally, it will be difficult for him to base his appeal on a divergent application of criteria and/or attribution factors when it is European law itself that allows national authorities complete freedom of weighting on a case-by-case basis. 44 Patrone (2013), pp. 215–225. 45 E.g. via Art. 302 LECrim in Spain, the proceedings can be declared secret for a period of 30 days if the offence is public. In the absence of an express reference in the law to the possibility of extending this period, the Constitutional Court declared that this loophole does not prevent the investigating judge from extending the secrecy of the proceedings if this 30-day period is insufficient, but only for the time strictly necessary to comply with the constitutional purpose of the investigation, cf. STC 176/1988, 4 October 1988, ES:TC:1988:176. It should be remembered that the secrecy of the proceedings suspends the calculation of the maximum time limits for the investigation (Art. 324.3 a) LECrim), and that the possibility of chaining successive extensions has led to the filing of complaints against Spain before the Strasbourg Court for alleged violation of Art. 6(1) ECHR (cf. ECtHR Cándido González Martín and Plasencia Santos v. Spain, 15 March 2016, CE:ECHR:2016:0315DEC000617710 , which was nevertheless declared inadmissible).

3.4

3.4

Substantive Legality

75

Substantive Legality

The decision on the allocation of the best placed jurisdiction will not only determine which criminal jurisdiction will hear the case from a procedural point of view, but will also determine the substantive criminal law applicable to the punishable conduct allegedly committed by the suspected or accused person or criminal law to prescribe.46 Despite the renewed efforts made by the Union on substantive criminal harmonisation after the entry into force of the Lisbon Treaty,47 the differences between national legal systems in this area are still significant. Consequently, from the point of view of the application of substantive criminal law, the choice of forum will affect such crucial aspects for prosecution as the definition of the criminal offence, the elements of the crime, the seriousness of the penalty associated to the unlawful behaviour, and the aggravating and extenuating circumstances applicable to the merits of the case. The determination of jurisdiction may even affect the criminal nature of the act itself. The application of the principle of dual criminality as a ground for refusal in mutual recognition instruments is a perfect example of this circumstance, and shows the problems that can arise from the existence of different national substantive criminal laws, as has recently been seen in Spain with the refusal of the execution of the EAWs issued in the framework of the investigation of the Procés48 case. In the criminal proceedings in Spain, the former president of the Generalitat of Catalonia was prosecuted for several offences, including the crime of rebellion, a particularly serious criminal offence that could be punished with up to more than twenty years of imprisonment according to the Spanish Penal Code.49 However, in Germany, the Schleswig-Holstein Oberlandesgerich decided, within the framework of the EAW procedure, that the facts described in the application form by the investigating magistrate of the Spanish Supreme Court could not be considered a crime in Germany, given that the elements required in the equivalent crime under German criminal law—allegedly, Hochverrat or high treason50—were not met, specifically, the element “force”. Hence, the German court decided that the Spanish request did not comply with the principle of dual criminality and rejected Puigdemont’s

46

For an in-depth study of this issue, see Luchtman (2013), pp. 11–33. E.g. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15 April 2011); Directive (EU) 2017/ 541, cit; Directive (EU) 2017/1371, cit. On this issue, Galli and Weyembergh (2013). On the problematic harmonisation of substantive and procedural criminal law in Europe in the run-up to the Lisbon Treaty, see Husabø and Strandbakken (2005). 48 TS 20907/2017. 49 Art. 472 paragraphs 5 and 7, Art. 473 Spanish Penal Code. 50 81 StGB. For a critical analysis of this issue from the point of view of comparative substantive law, see Javato (2018), pp. 65–70. 47

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surrender for the crime of rebellion.51 Leaving aside the criticism that, in our view, the German Court’s decision deserves, the present case clearly shows how differences between the substantive criminal law of Member States can be of paramount importance in transnational situations. From the criminal procedure law perspective, the allocation of jurisdiction would also determine the main aspects of the criminal proceedings such as the legal requirements on the gathering and admissibility of evidence, including the protection of fundamental rights, the regime on plea bargains, transactions or any sort of out-ofcourt resolutions, which broadly differ from one European country to another. Thus, when several Member States could exert their criminal jurisdiction over the same facts, the suspected or accused person affected by the conflict will prefer to be prosecuted or tried in the jurisdiction which provides lower penalties better procedural benefits and/or alternatives to the imprisonment for the crimes for which he or she is being investigated or charged. In effect, he will seek the application of a lex mitior criterion in his own interests, which is naturally not guaranteed in the current conflict prevention and settlement procedure. Nonetheless, it is true that in the guidelines issued by Eurojust we can find a recommendation to the national authorities not to choose the jurisdiction with the higher penalties or higher sentencing powers for the criminal acts allegedly committed by the suspected or accused person.52 However, recalling their soft law nature, we can only consider them as a mere recommendation that may or may not be followed by the national authorities, and not as a real principle to be applied to the resolution procedure or a right that can be claimed by the suspected or accused person, nor that this criterion can be effectively appealed before a court. This situation raises concerns on the actual nature and purpose of the agreement on the choice of forum. Mainly, whether this agreement between national authorities should be considered as an agreement that will determine the jurisdiction in the best position in the interest of a good administration of justice, which should be the main objective of the resolution procedure; or whether, on the contrary, this agreement can be easily tainted by the national authorities involved and become an agreement to choose the most favourable jurisdiction in punitive terms, in order to obtain an easier conviction or a higher penalty of the person being charged—a situation of forum 51 However, the Schleswig-Holstein Oberlandesgerich did agree to the surrender of Carles Puigdemont for the crime of embezzlement, but the Spanish investigating magistrate decided to refuse the surrender and withdraw the EAW by virtue of the operative part of ATS 8477/2018 of 19 July 2018, ES:TS:2018:8477A, but not before harshly criticising in its legal grounds the attitude contrary to the principle of mutual recognition and the achievement of effective judicial cooperation maintained by the German and Belgian authorities in their various decisions. 52 According to the Eurojust guidelines: “While it should be ensured that the potential penalties available reflect the seriousness of the criminal conduct that is subject to prosecution, judicial authorities should not seek to prosecute in one jurisdiction simply because the potential penalties available are higher than in another jurisdiction. Similarly, the relative sentencing powers of courts in the different jurisdictions should not be a determining factor in deciding in which jurisdiction a case should be prosecuted”. See Guidelines for deciding “which jurisdiction should prosecute?”, cit., p. 4.

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Procedural Safeguards and the Right to Defence of the Suspected or. . .

77

shopping53—. In other words, national authorities may apply a lex gravior criterion in a discretionary manner when settling the conflict of criminal jurisdiction. That said, it is clear that the current legal framework on conflicts of criminal jurisdiction does not prevent the latter scenario, blindly relying on the goodwill of the national authorities involved. Although we do not defend that the suspected or accused person should have the right to be investigated or prosecuted in the jurisdiction that is most favourable to his or her interests, neither do we believe that it is compatible with the requirements of due process for the national authorities to have an absolute power to determine the competent jurisdiction when, at the same time, an adequate system of judicial review on the choice of forum is not guaranteed. Ultimately, we consider that, in a situation of conflict of jurisdiction, none of the parties involved should have the power to choose the competent jurisdiction according to the seriousness of the penalties envisaged in abstracto in each national legal system for the criminal offence allegedly committed. Unfortunately, the absence of a hierarchical list of factors to determine the competent jurisdiction and the lack of a provision for supranational judicial review on the agreement reached by the national authorities prevents a due control in accordance with European standards of protection. This situation could lead to a possible violation of the principle of legality, in particular the European standard of foreseeability of the applicable law in accordance with the case law of the ECtHR on Art. 7 ECHR.54

3.5

Procedural Safeguards and the Right to Defence of the Suspected or Accused Person

Dealing with a criminal investigation or prosecution in a foreign country inevitably entails an additional burden for the parties involved. From the perspective of the suspect or accused person, this means, among other issues, the need to count on professional legal advice in that State, including legal assistance and legal representation. Furthermore, in the event that the suspected or accused person does not speak or understand the language in which the investigation or criminal proceedings is being conducted, the national authorities must provide a quality translation and interpretation service in order to safeguard their right to be informed of the criminal charges and to ensure the correct exercise of the right to defence at every single stage of the proceedings. Logically, this situation will be aggravated if the suspect or accused person has to exercise his or her procedural rights simultaneously before several criminal courts in different Member States. The latter and worst-case scenario would occur in a situation of conflict of criminal jurisdiction, and can be extended until the competent authorities reach a decision or until the consequences of the prohibition of ne bis in idem come into effect. It is therefore necessary to 53 54

In the same vein, Patrone (2013), p. 222. Cf. ECtHR Del Río Prada v. Spain, 21 October 2013, CE:ECHR:2013:1021JUD004275009.

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ensure that in all jurisdictions involved in a conflict an equivalent minimum standard of protection is provided in terms of the rights and procedural safeguards derived from the right to defence. Although the Union’s competence in the area of criminal procedural law is not all-encompassing, under the umbrella of Article 82(2)(b) TFEU, the procedural rights of individuals have been considered as one of the priority areas, making it possible to adopt secondary legislation in this area.55 In this regard, in recent years the EU has been developing a successful action plan56 in application of the Stockholm Programme, which has culminated in the adoption of up to six different directives for the approximation of the following procedural rights and guarantees in criminal57 proceedings: the right to translation and interpretation,58 the right to information,59 the right to legal assistance and to inform a third party of the situation of deprivation of liberty,60 on certain aspects of the presumption of innocence and the right to be present at trial,61 on procedural safeguards for minors investigated or accused in criminal62 proceedings and on the right to legal aid.63 These directives aim to ensure that, no matter the EU Member State in which the proceedings take place, the investigated or accused person will have a minimum equivalent standard of protection with regard to these rights and safeguards.64 Likewise, the establishment of a minimum standard of protection also aims to strengthen mutual trust between national legal systems and therefore to foster and facilitate judicial 55

Allegrezza (2018), p. 25. Communication COM(2010) 171 final, cit. 57 For a general overview of this issue, see for example Arangüena Fanego (2019), pp. 11–50. From an eminently practical perspective, Arangüena Fanego, De Hoyos Sancho, and Hernández López (2020). 58 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26 October 2010). See Vidal Fernández (2020), pp. 55–59. 59 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ L 132, 1 June 2012). For a review of its main contributions, see Allegrezza and Covolo (2016), pp. 41–51. 60 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right to legal counsel in criminal proceedings and in European Arrest Warrant proceedings, and on the right to have a third party informed at the time of deprivation of liberty and to communicate with third parties and consular authorities during deprivation of liberty (OJ L 294, 6 November 2013). For an in-depth analysis of this instrument, see Arangüena Fanego (2014). 61 Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 strengthening in criminal proceedings certain aspects of the presumption of innocence and the right to be present at trial (OJ L 65, 11 March 2016). 62 Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children suspected or accused in criminal proceedings (OJ L 132, 21 May 2016). 63 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297, 4 November 2016). 64 Garrido Carrillo and Faggiani (2013); Faggiani (2015); Faggiani (2017), pp. 84–103. 56

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Procedural Safeguards and the Right to Defence of the Suspected or. . .

79

cooperation in criminal matters between Member States based on the principle of mutual recognition. However, this does not mean that the differences between legal systems have disappeared. Indeed, the Member States can recognise higher levels of protection than those established by the directive, bearing in mind that the provisions laid down in these directives act as minimum rules. This implies that Member States shall not use the directive for reducing the standard of protection previously established by the CFREU, the ECHR and domestic provisions, and they shall maintain any previously established higher standard—the so-called non-regression clauses65—. Moreover, despite the clear transnational dimension that they intend to achieve, the provisions laid down in these directives are meant to be applied to domestic criminal proceedings, so they do not address nor place special emphasis on the exercise of these safeguards in specific transnational circumstances.66 The provisions laid down in the directives regarding the specific exercise of safeguards in EAW proceedings constitute the only exception to this.67 We must therefore conclude that, in a situation of conflict of criminal jurisdictions, the suspected or accused person will unavoidably encounter, even on these rights that have been partially harmonized, a different degree of protection depending on the Member State in which the criminal proceedings are being conducted. However, it is true that more recent case law of the ECJ on the EAW is leading to achieve a higher standard of protection for requested persons via establishing fundamental rights-based grounds for refusal. In Aranyosi and Căldăraru,68 the ECJ ruled that it is in accordance with EU law to refuse the surrender of a person if there is a real risk of violation of fundamental rights, particularly, on the grounds of a risk of breach of Article 4 CFREU prohibiting inhuman or degrading treatment law, even though the consolidated version of Framework Decision 2002/584/JHA does not expressly include this ground for refusal.69 In Minister for Justice and equality

65 E.g. Art. 14 Directive 2013/48/EU, cit. “Nothing in this Directive shall be interpreted as limiting or derogating from rights or procedural safeguards which are recognised under the Charter, the ECHR, the Covenant or other relevant provisions of international law or the law of the Member States providing a higher level of protection”. 66 See Hernández López (2019a), pp. 7–9. 67 E.g. Art. 10 Directive 2013/48/EU cit. Art. 5 Directive (EU) 2016/1919, cit. Jiménez-Villarejo Fernández (2007). 68 In the landmark CJEU Aranyosi and Căldăraru, cit. the Luxembourg Court interpreted, as Arangüena Fanego states, that the real risk of violation of the prohibition of inhuman and degrading treatment enshrined in the ECHR and the CFREU due to the poor conditions in Hungarian and Romanian prisons justifies a possible refusal to execute a European arrest warrant, giving rise to the appearance of implicit grounds for refusal of mutual recognition. In this sense, we believe that this interpretation could lead to a different status of protection and guarantees for “national” prisoners and for those subject to a request for surrender by virtue of a European arrest warrant. For more information on the implications of this judgment, see Arangüena Fanego (2017); Bustos Gisbert (2016); Martín Rodríguez (2016). 69 The reasoning behind CJEU Aranyosi and Căldăraru has subsequently been completed by the Luxembourg Court through CJEU ML, C-220/18 PPU of 25 July 2018, EU:C:2018:589.

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v. LM,70 the CJEU called into question the Polish justice system, a Member State involved in proceedings for infringement pursuant Art. 7(1) TEU for violation of fundamental rights due to legislative reforms that compromised the independence of its judiciary, accepting that this circumstance could justify the non-surrender of a person to that State under an EAW,71 albeit these circumstances must be examined on a case-by-case basis and cannot lead to automatically refuse any EAW issued by Polish judicial authorities.72 Through the introduction of these implied grounds for refusal based on the violation of fundamental rights, it seems that the CJEU is trying to strike the right balance between the effectiveness and primacy of Union law on the one hand, and the protection of the fundamental rights and safeguards of the individual on the other.73 However, this practice can also be understood as a system that differentiates between the rights and safeguards of individuals depending on whether they are facing purely national or transnational criminal proceedings, which could hinder mutual trust and the effectiveness of judicial cooperation in criminal matters between Member States. In summary, given that the due process directives do not take into account the special features that may arise for their exercise in a situation with parallel criminal proceedings, the suspected or accused person will be aggrieved until the conflict is resolved. That said, a possible intermediate solution could be to establish a number of specific minimum guarantees for cross-border situations.74 However, this would in practice lead to increased complexity of proceedings and discrimination between “national” and “transnational” defendants. Therefore, it is not yet guaranteed that the suspected or accused person will have an identical standard of protection in every single criminal jurisdiction involved in the conflict. As a result, the continuation of the conflict and the final allocation of the competent jurisdiction have an enormous impact on the extent and scope of the procedural rights and safeguards granted to the suspect and accused person; in particular, on the right of defence enshrined in Art. 48 CFEU and Art. 6(3) ECHR.

70

Cf. CJEU CJEU LM, cit. A sceptical view of this practice can be found in Vilas Álvarez (2018), pp. 64–71. However, it should be noted that grounds for non-recognition based on the infringement of fundamental rights are being introduced in the latest generation of mutual recognition instruments, e.g. Art. 11(1)(f) of Directive 2014/41/EU, cit. 72 Cf. CJEU Openbaar Ministerie v. L and P, C-354/20 PPU, 17 December 2020, EU:C:2020:1033. 73 To understand the evolution of the case law of the CJEU in this area, cf. CJEU Melloni, C-399/11, 26 February 2013, EU:C:2013:107; Taricco, C-105/14, 8 September 2015, EU:C:2015:555; M.A.S. and M.B. (Taricco II), C- 42/17, 5 December 2017, EU:C:2017:936. 74 A similar option was considered at the time for the decision on the approach to be taken for the recognition of a minimum standard of due process, although it was discarded. See Vidal Fernández (2010), p. 192. 71

3.6

3.6

Victim’s Interest in the Allocation of Jurisdiction

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Victim’s Interest in the Allocation of Jurisdiction

The suspect or accused person is not the only party of criminal proceedings who may be affected by the adverse consequences stemming from a conflict of criminal jurisdiction. Similarly, the interests of the victim may be harmed by the allocation of the competent jurisdiction, making the role of the victim in the criminal proceedings a matter that should be, at least, considered as a relevant factor in the determination of jurisdiction, deserving special protection by the competent authorities, especially if he or she is a particularly vulnerable person. In order to ensure that victims of crime have a minimum standard of rights and protection within the AFSJ, the EU adopted a specific directive75 and a mutual recognition instrument, the European Protection Order.76 However, despite the efforts made at the European level, victims in criminal proceedings will still experience a different status or role in the criminal proceedings depending on the Member State where the criminal investigation or proceedings is being conducted. In this sense, the role of the victim in criminal proceedings varies enormously attending to the different European legal systems. There are national legal systems that allow the victim to bring criminal proceedings independently and to appear as an autonomous party in the criminal proceedings pending against the investigated or accused person—such is the case of the Spanish system—, while other legal systems of the Member States deny this possibility to the victim 77 with respect to public offences, leaving the monopoly of the prosecution to the Public Prosecutor’s Office—that is the case of the Dutch and German criminal systems—. Moreover, it is important to note that, in some criminal systems, in application of the expediency principle, the Public Prosecutor has a wide margin of discretion to not prosecute an offence or to dispose a criminal investigation, even against the opinion of the victim—Dutch system—; whereas, in other systems, the Public prosecutors are strongly bound by the principle of legality and, therefore, cannot decide not to prosecute a criminal act that may constitute a public criminal offence according to the Penal Code—current Spanish system, with very few exceptions78—. While it is true that the European Directive on the protection of crime victims reserves a chapter for the harmonisation of victims’ rights as regards their participation in criminal proceedings,79 it is also true that this harmonisation is almost 75

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime and replacing Council Framework Decision 2001/220/JHA (OJ L 315 of 14 November 2012). For a study of this Directive and its transposition into Spanish law, see De Hoyos Sancho (2014). 76 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European Protection Order (OJ L 338, 21 December 2011). For a study of this instrument and its application in Spain, see Arangüena Fanego (2015), pp. 491–535. From the European perspective: Lupária and Cagossi (2018), pp. 301–318. 77 On this topic, De Hoyos Sancho (2016), pp. 125–158. 78 See e.g. art. 803 bis LECrim. 79 Chapter 3 of Directive 2012/29/EU, cit.

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limited to guaranteeing their right to be heard and to be able to appeal against the dismissal or withdrawal of the prosecution previously initiated by the Public Prosecutor’s Office. Consequently, this minimum harmonisation does not guarantee an equivalent role for the victim in criminal proceedings in any Member State, so that, in a situation of conflict of criminal jurisdiction, the victim may have a legitimate interest in participating in the procedure for determining the competent jurisdiction. The Eurojust’s guidelines already state that the interests of the victim shall be a main factor that must be taken into account to decide which is the best-placed jurisdiction in a situation of conflict of criminal jurisdictions.80 However, while it is true that victim’s interests deserve a special protection in criminal proceedings, it should not be forgotten that the victim does not have a subjective right to punish the offender, since the exercise of ius puniendi is and should be monopolised by the State, nor is there a fundamental right of the victim to obtain the criminal conviction of another person.81 Therefore, even though the interests of the victim have to be borne in mind and might be relevant as a factor to determine the competent jurisdiction, particularly in view of some kind of crimes—e.g. Trafficking in Human Beings—, these interests should only be taken into account as a complementary or secondary factor, which means that the allocation of the best-placed jurisdiction should never be solely based on the best interests of the victim of the crime but on a conjunction and ponderation of different criteria. Nevertheless, from the perspective of the victim’s rights in those Member States where the victim has the status of plaintiff in criminal proceedings, the victim’s interests can be a relevant factor in the allocation of jurisdiction, and should therefore be taken into account when determining the jurisdiction best placed to prosecute.

80 “In accordance with Directive 2012/29/EU on victims’ rights, judicial authorities must take into account the significant interests of victims, including their protection, and whether they would be prejudiced if any prosecution were to take place in one jurisdiction rather than another. Such consideration would include the possibility of victims claiming compensation.”, see Guidelines for deciding “which jurisdiction should prosecute?”, op. cit., p. 3. 81 The Spanish Constitutional Court has referred to this issue as the “principle of inverted legality”, cf. STC 41/1997, of 10 March, ES:TC:1997:41, FJ 4: “although the Constitution enshrines in its Art. 25(1) the principle of legality, as the right not to be condemned or punished except for legally foreseen actions or omissions, there is no “inverted principle of legality”, that is, a fundamental right of the victim to obtain the criminal conviction of another, whether or not he has violated his fundamental rights, since these are rights of freedom, and to introduce among them the punitive claim would radically alter their meaning”. In similar terms, cf. STC 74/1997, of 21 April, ES: TC:1997:74; STC 21/2000, of 31 January 2000, ES:TC:2000:21.

References

3.7

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Negative Consequences for the Effective Prosecution of Crimes

From the point of view of national authorities and the effective prosecution of transnational crime, the conflict of jurisdiction represents a waste of valuable resources. Duplicity of proceedings can have two main negative effects: firstly, the lack of concentration of proceedings in a single jurisdiction forces national authorities to have partial knowledge of the facts, which deprives the competent authority of knowing all relevant circumstances for the effective prosecution of the criminal act—e.g. availability of evidence—. This forces, in the best of cases, the temporary stay of proceedings, and in the worst of cases, the final acquittal of the accused caused by the lack of availability of evidence to set aside the presumption of innocence. Secondly, and following on from the previous consequence, if the criminal proceedings in one of the two Member States result in an acquittal, this will prevent, in application of the consequences of the ne bis in idem principle, a possible conviction in criminal proceedings in another Member State for the same acts, even if the defendant or accused could have been found guilty in other jurisdictions.82 In both cases, the negative consequence arising from the maintenance of the conflict of jurisdiction is the possible impunity of the crime caused or fostered by the mere existence of the conflict of jurisdiction rather than due to the actual circumstances of the case.

References Allegrezza S (2018) Toward a European constitutional framework for defence rights. In: Allegrezza S, Covolo V (eds) Effective defence rights in criminal proceedings. A European and comparative study on Judicial Remedies. Wolters Kluwer-CEDAM, Milan, pp 3–34 Allegrezza S, Covolo V (2016) The Directive 2012/13/EU on the right to information in criminal proceedings: status quo or step forward? In: Đurđević Z, Ivičević Karas E (eds) European Criminal procedure law in service of protection of the union financial interests: state of play and challenges. Croatian Association of European Criminal Law, Zagreb, pp 41–51 Arangüena Fanego C (2014) El derecho a la asistencia letrada en la directiva 2013/48/UE. Revista General de Derecho Europeo, 32 Arangüena Fanego C (2015) Emisión y ejecución en España de órdenes europeas de protección (Ley de reconocimiento mutuo de resoluciones penales en la Unión Europea y transposición de la Directiva 2011/99/UE). Revista de Derecho Comunitario Europeo 51:491–535 Arangüena Fanego C (2017) Las garantías procesales de sospechosos e imputados en procesos penales. In: Gutiérrez Zarza MA (Coord) Los retos del espacio de Libertad, Seguridad y Justicia de la Unión Europea en el año 2016. Wolters Kluwer, Madrid Arangüena Fanego C (2019) La armonización de las garantías procesales de sospechosos y acusados en la Unión Europea. Grafolid, Valladolid

82

Cf. CJEU Gasparini and Van Straaten, cit.

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Arangüena Fanego C (2020) In: De Hoyos Sancho M, Hernández López A (eds) Procedural safeguards for suspects and accused persons in criminal proceedings: good practices throughout the European Union. Springer, Cham Bustos Gisbert R (2016) Un insuficiente paso en la dirección correcta? Comentario a la Sentencia del TJUEU (Gran Sala), de 5 de abril de 2016, en los casos acumulados Pal Aranyosi (C-404/15) y Robert Caldararu (C-659/15 PPU). Revista General de Derecho Europeo 40 Conway G (2003) Ne bis in idem in International Law. Int Crim Law Rev 3(3):217–244 Costa Ramos V (2009) Ne Bis In Idem e União Europeia. Coimbra Editora, Coimbra De Hoyos Sancho M (2009) Armonización de los procesos penales, reconocimiento mutuo y garantías esenciales. In: De Hoyos Sancho M (ed) El proceso penal en la Unión Europea: garantías esenciales. Lex Nova, Valladolid, pp 42–79 De Hoyos Sancho M (2014) Reflexiones sobre la Directiva 2012/29/UE, por la que se establecen normas mínimas sobre los derechos, el apoyo y la protección de las víctimas de delitos, y su transposición al ordenamiento español. Revista General de Derecho Procesal 34 De Hoyos Sancho M (2016) El ejercicio de la acción penal por las víctimas. Un estudio comparado. Thomson Reuters - Aranzadi, Cizur Menor Faggiani V (2015) La justicia penal en la Unión Europea. Hacia la armonización de los derechos procesales. Doctoral thesis supervised by Bin, R. and Azpitarte Sánchez, M. University of Granada Faggiani V (2017) Le direttive sui diritti processuali. Verso un “modello europeo di giustizia penale”? Freedom Secur Just Eur Legal Stud 1:84–103 Galli F, Weyembergh A (eds) (2013) Approximation of substantive criminal law in the EU: the way forward. Editions de l'Université de Bruxelles, Brussels Garrido Carrillo FJ, Faggiani V (2013) La armonización de los derechos procesales en la UE. Revista General de Derecho Constitucional 16 Gimeno Sendra V (2007) Los principios de legalidad y non bis in idem en la doctrina del Tribunal Constitucional. La Ley: Revista jurídica española de doctrina, jurisprudencia y bibliografía 3: 1855–1861 Hernández López A (2019a) Granting due process of law to suspected and accused persons involved in parallel criminal proceedings in the EU. Diritto Penale Contemporaneo - Rivista Trimestrale 1:1–16 Hernández López A (2019b) La aplicación del principio ne bis in idem en la nueva jurisprudencia del TJUE sobre la acumulación de sanciones administrativas y penales. Revista de Estudios Europeos extra:286–304 Husabø EJ, Strandbakken A (eds) (2005) Harmonization of criminal law in Europe. Intersentia, Antwerpen Javato A (2018) La entrega de Puigdemont por el delito de quebrantamiento de la paz pública (§ 125 Código Penal alemán). In: Arroyo Zapatero L, Nieto Martín A, Muñoz De Morales Romero M (Dirs) Cooperar y Castigar: el caso Puigdemont. Ediciones de la Universidad de Castilla-La Mancha, pp 65–71 Jiménez-Villarejo Fernández F (2007) Armonización de las garantías procesales y derecho a la asistencia letrada en la Orden Europea de Detención y Entrega. In: Arangüena Fanego (Coord) Garantías procesales en los procesos penales en la Unión Europea Valladolid: Lex Nova, pp 119–154 Klip A, Van der Wilt H (2002) The Netherlands non bis in idem. Revue internationale de droit pénal 73(3):1091–1137 Lelieur J (2013) ‘Transnationalising’ Ne Bis In Idem: how the rule of Ne Bis In Idem reveals the principle of personal legal certainty. Utrecht Law Rev 9(4):198–210 López Barja De Quiroga J (2004) El principio non bis in idem. Dykinson, Madrid López Barja De Quiroga J (2019) Tratado de derecho procesal penal. Thomson Reuters-Aranzadi, Cizur Menor Luchtman M (2013) Towards a transnational application of the legality principle in the EU’s area of freedom, security and justice? Utrecht Law Rev 9(4):11–33

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Lupária L (2017) Derechos fundamentales y principio ne bis in idem en la cooperación judicial europea. In: Burgos Ladrón De Guevara J (Coord.) La cooperación judicial entre España e Italia. La Orden europea de detención y entrega en la ejecución de sentencias penales. Instituto Vasco de Derecho Procesal, San Sebastián, pp 35–44 Lupária L, Cagossi M (2018) La orden europea de protección: desde la perspectiva europea. In: Jimeno Bulnes M (Dir.) and Miguel Barrio R (Coord.) Espacio judicial europeo y proceso penal. Tecnos, Madrid, pp 301–318 Martín Rodríguez PJ (2016) La emergencia de los límites constitucionales de la confianza mutua en el Espacio de Libertad, Seguridad y Justicia en la sentencia del Tribunal de Justicia Aranyosi y Caldararu. Revista de Derecho Comunitario Europeo 55:859–900 Martín y Pérez de Nanclares JM (2015) El TJUE pierde el rumbo en el dictamen 2/13 ¿Merece todavía la pena la adhesión de la UE al CEDH? Revista de Derecho Comunitario Europeo 52: 825–869 Mitsilegas V (2016) EU criminal law after lisbon: rights, trust and the transformation of justice in Europe. Hart publishing, Oxford Muñoz Clares J, Caballero Salinas JM (2019) Ne bis in idem: hechos, penas, sanciones. Thomson Reuters-Aranzadi, Cizur Menor Ouwerkerk J (2011) Quid Pro Quo? A comparative law perspective on the mutual recognition of judicial decisions in criminal matters. Intersentia, Cambrdige, Antwerp, Portland Patrone I (2013) Conflicts of jurisdiction and judicial cooperation instruments: Eurojust’s role. ERA Forum 14(2):215–225 Rafaraci T (2010) Ne bis in idem y conflictos de jurisdicción en materia penal en el Espacio de Libertad, Seguridad y Justicia de la Unión Europea. In: Arangüena Fanego C (Coord.) Espacio Europeo de Libertad, Seguridad y Justicia: últimos avances en cooperación judicial penal. Lex Nova, Valladolid, pp 126–140 Van Bockel B (2010) The “ne bis in idem” principle in EU law. Kluwer Law International, Alphen aan den Rijn Vervaele JAE (2013) Ne Bis In Idem: towards a transnational constitutional principle in the EU? Utrecht Law Rev 9(4):211–229 Vervaele JAE (2015) Schengen and charter-related ne bis in idem protection in the area of freedom, security and justice: M and Zoran Spasic. Common Mark Law Rev 52:1139–1160 Vidal Fernández B (2010) El derecho a intérprete y a la traducción en los procesos penales en la Unión Europea. La iniciativa de 2010 de Directiva del Parlamento Europeo y del Consejo relativa a la interpretación y traducción. In: Arangüena Fanego C (Dir.) Espacio Europeo de Libertad, Seguridad y Justicia: últimos avances en cooperación judicial penal. Lex Nova, Valladolid, pp 183–222 Vidal Fernández B (2020) Implementation of the legal aid Directive in Spain. EUCRIM 1:55–59 Vilas Álvarez D (2018) Use and abuse of the concept of fundamental rights, an obstacle for judicial cooperation? EUCRIM 1:64–71

Further Reading Banach-Gutierrez JB (2021) The surrender of prosecuted persons under the EAW procedure: issues of transposition of EU criminal policy to the national level. New J Eur Crim Law 11(1):54–68 Böse M, Bröcker M, Schneider A (eds) (2021) Judicial protection in transnational criminal proceedings. Springer, Cham Caianiello M (2016) Criminal appeals in Europe: the perspective of the defence. Eur J Crime Crim Law Crim Just 24:274–290

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De Amicis G (2014) Ne bis in idem e “doppio binario” sanzionatorio: prime riflessioni sugli effetti della sentenza “Grande Stevens” nell'ordinamento italiano. Diritto penale contemporáneo – Riv Trim, 3–4 Gerards J, Brems E (eds) (2017) Procedural review in European fundamental rights cases. Cambridge University Press, Cambridge Klip A (2015) On Victim’s rights and its impact on the rights of the accused. Eur J Crime Crim Law Crim Just 23:177–189 Klip A (2019) Jurisdiction and transnational Ne Bis in Idem in prosecution of transnational crimes. In: Brown DK, Turner JI, Weisser B (eds) The Oxford handbook of criminal process. Oxford University Press, Oxford Luchtman M (2020) Transnational law enforcement cooperation- fundamental rights in European cooperation in criminal matters. Eur J Crime Crim Law Crim Just 28:14–45 Lupària L (2012) La litispendenza internazionale tra ne bis in idem europeo e processo penale italiano. Giuffrè, Milano Marletta A (2017) A new course for mutual trust in the AFSJ? Transnational ne bis in idem and the determination of the merits of the case in Kossowski. New J Eur Crim Law 8(2):2017 Mitsilegas V (2015) The symbiotic relationship between mutual trust and fundamental rights in Europe’s area of criminal justice. New J Eur Crim Law 6:n. 4 Ouwerkerk J (2019) EU competence in the area of procedural criminal law: functional vs. Selfstanding approximation of procedural rights and their progressive effect on the Charter’s scope of application. Eur J Crime Crim Law Crim Just 27:89–96 Rafaraci T (2008) Procedural safeguards and the principle of ne bis in idem in the European Union. In: Bassiouni MC, Militello V, Satzger H (eds) European cooperation in penal matters: issues and perspectives. Padova, Cedam Sarmiento D (2007) El principio ne bis in idem en la jurisprudencia del Tribunal de Justicia de la Comunidad Europea. In: Arroyo Zapatero L, Nieto Martin A (eds) El principio ne bis in idem en el Derecho penal europeo e internacional. Ediciones De La Universidad De Castilla-La Mancha, Cuenca Scalia V (2015) Protection of fundamental rights and criminal law. The dialogue between the EU Court of Justice and National Courts. EUCRIM 3:100–111 Schomburg W (2012) Criminal matters: transnational ne bis in idem in Europe – conflicts of jurisdiction – transfer of proceedings. ERA Forum 13(3) Serneels C (2020) ‘Unionisation’ of the European Court of Human Rights’ ne bis in idem jurisprudence: the Case of Mihalache v Romania. New J Eur Crim Law 11(2):227–239 Viganò F (2014) Doppio binario sanzionatorio e ne bis in idem: verso una diretta applicazione dell'Art. 50 della Carta? (a margine della sentenza Grande Stevens della Corte Edu). Diritto penale contemporaneo – Riv. trim., 3–4 Wade ML (2014) Securing defence rights in transnational proceedings. Eur J Crime Crim Law Crim Just 23:145–169

Chapter 4

Towards a New Model of Settlement of Conflicts: Background and Methodology

4.1

Foreword

After analyzing the EU regulatory framework on the prevention and settlement of conflicts of jurisdiction, and, more specifically, the solutions adopted through secondary law legislation, we can sustain that there is no procedure that establishes a homogeneous solution, nor one which guarantees that once the conflict has occurred, it will be settled after consideration of all the circumstances applicable to the case and in the interest of proper administration of justice. It is true that, in these conflictive cases, the current system allows any of the authorities involved to request the assistance of Eurojust, which may exercise certain powers to prevent and settle conflicts of criminal jurisdiction. But it should be remarked that these powers and functions are in fact limited to give expert advice and/or exercise a sort of mediation as regards determining which judicial authority is in a better position to carry out investigation and prosecution. Nor should it be disregarded that the rules used to decide on this hypothetical situation, and which could prevent the conflict, are mainly represented by the guidelines published by Eurojust itself in 2003 and updated in 2016. In legal terms these are nothing more than simple soft law rules. In this context, the Eurojust solution on the settlement of the conflict constitutes, at best, a mere written recommendation, which may or may not be complied with by the national authorities involved. Theoretically, therefore, it is perfectly possible for the conflict of jurisdiction to continue even after Eurojust’s intervention. Even assuming that the national authorities involved agree on a solution to the conflict, which will usually lead to concentrating proceedings in the State whose jurisdiction has been determined to be in a better position to prosecute, they will inevitably face a legal void in EU law concerning the procedure to transfer criminal proceedings in favor of the jurisdiction deemed to be in a better position to undertake

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 A. Hernández López, Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU, Comparative, European and International Criminal Justice 3, https://doi.org/10.1007/978-3-031-15691-5_4

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the case, necessarily resorting to solutions provided by treaties and legal instruments of international law. In short, this is a situation in which the application of secondary law instruments created in the context of the third pillar regime still prevails. Here, judicial cooperation in criminal matters was subject to the approval of instruments under the onerous rule of unanimity and based on the progressive application of the principle of mutual recognition. However, we are now in a post-Lisbon Treaty scenario, in which judicial cooperation in criminal matters underpinned by the principle of mutual recognition coexists with a renewed process aligning and harmonizing procedural and substantive criminal law, in accordance with Arts. 82 and 83 TFEU. In the best of cases, it is clear that the instruments currently in force are ill suited to the post-Lisbon situation. This requires an in-depth review of all of this legal framework so that, at the very least, it is formally adapted to the legislative instruments of the new scenario—in other words, being replaced by directives and/or regulations—. As previously stated, the sources of primary law in force, especially Arts. 82(1) (b) and 85(1)(c) TFEU, permit the adoption of new directives and regulations, adopted in accordance with ordinary legislative procedure, on the prevention and resolution of conflicts of jurisdiction between EU Member States. These provisions are not only limited to allowing adaptation of the current third pillar instruments, as their terms would also allow a radical change of perspective with respect to currently existing solutions. Particularly, Art. 85(1)(c) TFEU, in relation to the role of Eurojust in settling a conflict, does not limit its action to issue a mere non-binding recommendation, but includes the possibility of its powers being extended, by means of a new regulation, to include decisive powers on the merits of the case.1 The materialization of this possibility would, in turn, lead to an intense debate on the legitimacy of the Agency to adopt this decision, on the proportionality and subsidiarity of this power with respect to the competences shared with the EU, as well as on the need to establish a stronger jurisdictional control by the CJEU. Thus, we have a solid legal basis that enables the proposal of new instruments, new models and different approaches to a problem that lacks an effective and specific response in EU law. Despite the obligation imposed by primary law, to date no proposal has been made public that takes up the possibilities offered by the new legal basis regarding the prevention and resolution of conflicts of jurisdiction. Neither was there any reference to this issue in the Strategic Guidelines for legislative and operational programming for 2014–2019 in the Area of Freedom, Security and Justice, nor was it expressly mentioned in the new Strategic Agenda of the EU for the period 2019–2024. However, the president of the Council pointed up this problem in 2019 and, more recently, during the 2021 State of the Union address, the President of the Commission does have announced the intention to make a proposal on transfer of criminal proceedings in the near future.

1

In this sense, Weyembergh (2011), pp. 93–94; Patrone (2013), pp. 222–224.

4.2

Legislative Backgrounds

89

In conclusion, both practice and law-making representatives strive for a new legal framework on this issue. We consider that the lack of specific legislative proposals should be tackled by the academia through the recommendation of new hypothetical solutions and models for the prevention and settling of conflicts. These will encourage a renewed debate on the opportunity to comprehensively improve the system, guaranteeing the effective prosecution of transnational crime and, at the same time, full respect for the guarantees and procedural rights and safeguards of the parties involved in the proceedings. Consequently, and in line with the main objectives of this book, in the following sections we will define the methodological bases for proposing our own de lege ferenda models in order to improve the current standard for the prevention and resolution of conflicts of criminal jurisdiction between Member States.

4.2 4.2.1

Legislative Backgrounds The Council of Europe Proposal

Before proposing our own models for preventing and settling conflicts of criminal jurisdiction between Member States, it is convenient to review other models and precedents which have emerged in this area inside and beyond the specific framework of the EU. In this regard, at the European regional level, the Council of Europe drew up in the 1960s a draft of the European Convention on the resolution of Conflicts of criminal jurisdiction between Member States.2 This draft, prepared by the Legal Committee, sparked a broad debate that materialized in the adoption of a recommendation3 by the Consultative Assembly—known today as the Parliament Assembly—, calling for the approval of a Convention on the settling of conflicts of criminal jurisdiction within the Council of Europe taking the draft as basis. The recommendation was grounded on the premise that under international law each State party establishes several different forms or channels to exercise its criminal jurisdiction, and that it is precisely this variety of criteria which may cause the concurrence of several criminal jurisdictions with regard to the same specific criminal offence when it involves foreign elements. This would imply the possibility of the investigated or accused person being tried successively for the very same offence—criminal acts—in different States, a situation that was already considered manifestly disproportionate and legally unacceptable.

2

Draft European Convention on conflicts of jurisdiction in criminal matters, DOC. 1873 COE, (Strasbourg, 4 January 1965). 3 Recommendation 420 of the Consultative Assembly of the Council of Europe of 29 January 1965 on the settlement of conflicts of jurisdiction in criminal matters.

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The solution proposed by the draft Convention was actually quite drastic, providing a solution that entailed establishing of a hierarchy among the different criteria applied for claiming jurisdiction. Thus, the draft text recommended the instauration of a “primary” jurisdiction,4 based on the principle of territoriality; a “preferential” jurisdiction, based on the principle of protection;5 and a “subsidiary” jurisdiction, underpinned by other classic extraterritorial principles applied for claiming jurisdiction—e.g. ratione personae—and conditional upon compliance with the principle of double criminality with respect to the law of the State with territorial jurisdiction.6 Thus, in the case of criminal acts triggering the jurisdiction of several States, the one in whose territory they had been committed should have preference over all the others, except when the crime was committed against the interests and security of another State party. Beyond the institution of the hierarchy of criteria, the draft text also tried to provide a homogeneous definition of what should be understood by the territory where the offence was committed. Primarily, it offered the possibility of considering as such both the place where the criminal act or omission was committed and the place where the crime produced its effects.7 In order to avoid any overlapping of criminal jurisdictions in those cases where two States would apply a different interpretation of the above criterion, the text itself provided an additional hierarchical list of factors to resolve the issue.8 However, the text was never adopted in these terms; mainly because the Subcommittee of the European Committee on Crime Problems responsible for drafting it considered that establishing hierarchical criteria for assigning jurisdiction would be too rigid a mechanism and not particularly adaptable to the needs of each specific case. In addition, it did not consider that the principle of territoriality would always be the most appropriate criterion for deciding on jurisdiction, considering the need to attend to other relevant interests, such as the effective re-socializing of the offender.9 This task could be much simpler if the latter were tried and sentenced in the country of which they are a national or where they reside.10 As a result, the draft European convention on conflicts of jurisdiction in criminal matters was never adopted albeit it

4

Arts. 2(2), 3 and 7 Draft European Convention on conflicts of jurisdiction in criminal matters. Art. 7 Draft European Convention on conflicts of jurisdiction in criminal matters. 6 Arts. 4, 5 and 6 Draft European Convention on conflicts of jurisdiction in criminal matters. 7 Art. 3(2) Draft European Convention on conflicts of jurisdiction in criminal matters. 8 Art. 3(3) Draft European Convention on conflicts of jurisdiction in criminal matters. Those factors were the following: first, the State on whose territory the constituent factor of the offence or attempted offence was committed or the constituent omission occurred; then, the State on whose territory an act of complicity was committed; lastly the State on whose territory the effect was produced. Where more than one State can claim equal right to exercise jurisdiction, primary right of jurisdiction shall lie with the State on whose territory the offender is found. 9 In this sense, see the general observations made on the Explanatory Report to the European Convention on the Transfer of Proceedings in Criminal Matters (Strasbourg, 15 May 1972), pp. 6–7. 10 Vermeulen et al. (2002), p. 22. 5

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Legislative Backgrounds

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introduced some ambitious ideas that, ultimately, inspired the adoption of the European Convention on transfer of criminal proceedings.

4.2.2

The EPPO as a Potential Example of a Vertical Mechanism

Even if it is not stricto sensu a situation concerning a conflict of criminal jurisdiction, it is appropriate to dedicate a few lines to an analysis of the method provided in the new Regulation (EU) 2017/1939 for resolving possible conflicts of competence between the European Public Prosecutor’s Office and the different national authorities of the Member States when exercising their jurisdiction regarding specific acts. In this regard, the Regulation (EU) 2017/1939 provides that, In the case of disagreement between the EPPO and the national prosecution authorities over the question of whether the criminal conduct falls within the scope of application of the EPPO,11 the national authorities competent to decide on the attribution of competences concerning prosecution at national level shall decide who is to be competent for the investigation of the case.12 Therefore, the solution laid down by the Regulation consists of a mere referral en bloc to the procedure for settling conflicts of competence established internally by each Member State. As a consequence of this, it will be a national authority which decides in the first instance on the conflict, and then resolves it by attributing authority to hear the case to its own national authorities or to the European Public Prosecutor’s Office.13 This approach equates the European Public Prosecutor’s Office with a national authority and implies subordinating the possible intervention of the parties to the regulation of the procedure provided for in each respective national legal system for settling this kind of conflicts. This inevitably reveals, once again, the asymmetry which prevails regarding the rights and duties of the parties depending on the Member State where the proceedings are taking place, and even fostering a duplicity of decisions and disparity of criteria in a scenario of multilateral conflicts. Besides this initial problem, determining the national procedure for assigning competence in the exercise of criminal action may become a particularly complex issue in certain Member States. This was in our view the case of Spain, in which the

11

Art. 22(2) and (3); Art. 25(2) and (3). Art. 25(6) Regulation 2017/1939, cit. 13 According to Vilas Álvarez, this provision would apparently apply to negative conflicts of jurisdiction, given the system of exchange of information between the European Public Prosecutor’s Office and the national authorities established in Art. 25 of the Regulation, although without ruling out that Art. 25(3), which allows the national authority to discuss the jurisdiction of the European Public Prosecutor’s Office based on a criterion of harm or seriousness of the penalty, could serve as a vehicle for the European Public Prosecutor’s Office to analyse whether it agrees with the national authority and, in the event of discrepancy, could raise a positive conflict of jurisdiction. See Vilas Álvarez (2018), pp. 74–75. 12

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exercise of competences concerning prosecution corresponds—albeit not exclusively—to the Public Prosecutor’s Office. Meanwhile, conflicts of competence in criminal matters—technically speaking, cuestiones de competencia—are resolved in a court of law by the common hierarchical higher judicial body. However, determining the authority envisaged in Art. 25(6) of the Regulation of the European Public Prosecutor’s Office is intended to decide who should initiate or continue the investigation of the criminal offence. This function, except for very specific cases, is still assumed in Spain in the investigation phase by judges and magistrates.14 The procedural dilemma in this regard was not simple, since deciding on the competent authority to resolve the conflict of competence between the European Public Prosecutor’s Office and the Spanish authorities will thereby determine the procedure to be followed and the procedural possibilities for the affected parties. Notwithstanding the relevance of this question for countries such as Spain,15 the actual importance of the way in which the competence of the European Public Prosecutor’s Office is designed for the object of our study lies in the CJEU’s capacity to exercise, via preliminary ruling requests, supranational jurisdictional control over this decision on claiming jurisdiction.16 Art. 42 of Regulation (EU) 2017/1939, which gives a detailed description of the type of legal control to which the European Public Prosecutor’s Office is subject, makes allowances, in paragraph 2 letter c), for the possibility of the CJEU’s ruling on the interpretation of articles 22 and 25 of the Regulation—provisions relating to the exercise of competence by the European Public Prosecutor’s Office—concerning any conflict that arises between the European Public Prosecutor’s Office and the national authorities— that is, in cases involving Art. 25(6) of the Regulation (EU) 2017/1939—. By virtue of this provision, determining the conflict of jurisdiction between a national authority of a Member State and the European Public Prosecutor’s Office when investigating the same acts will no longer depend exclusively on the decision by a national body of the Member State through a resolution procedure provided for in its domestic law. Instead, the decision may now be revoked as a result of a possible divergent interpretation of the conflict made by the Luxembourg Court. This novel formula, which should be considered an additional procedural safeguard for the investigated or accused party subject to the jurisdiction of the European Public Prosecutor’s Office, establishes in effect a vertical mechanism, albeit not absolute, for settling conflicts of competence that may arise between the national authorities of the Member States and the European Public Prosecutor’s Office. Although it is true, as we pointed out at the beginning of this section, that this 14

Estevez Mendoza (2017), pp. 106–122. As it was already pointed out in Hernández López (2018), pp. 488–489. This issue has been partially solved by means of the adoption of an ad hoc legislation to implement the EPPO in Spain. In this regard, see the solution provided in Art. 9 of the Ley Orgánica 9/2021 de aplicación del Reglamento (UE) 2017/1939 del Consejo, de 12 de octubre de 2017, por el que se establece una cooperación reforzada para la creación de la Fiscalía Europea (OJ 157, of 2 July 2021). 16 On this issue, see Panzavolta (2018), pp. 79–81. 15

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situation cannot be fully extrapolated to a real situation of conflict of criminal jurisdiction between Member States, it does in our opinion represent a significant step towards the extension of vertical formulas to such a matter. Only through future CJEU case law on this issue will we be able to determine the real scope of this new way of assigning competence in criminal matters, a study that unfortunately we cannot undertake at this time due to lack of decisions on this issue. Finally, and although it does not originate in a conflict of jurisdiction, the European Public Prosecutor’s Office plays a decisive role in determining the competent jurisdiction for prosecution in cases in which more than one Member State may exercise its jurisdiction and prosecute the same acts. The Regulation establishes that when more than one Member State has jurisdiction over the case, the Permanent Chamber shall in principle decide to bring the case to trial in the Member State of the Delegated European Prosecutor responsible.17 Nevertheless, the Permanent Chamber, after studying the report presented by the European Delegated Prosecutor, may request the exercise of criminal action in a different Member State, and either group or divide cases, reassigning the case to another Delegated European Prosecutor. This will be based on justified reasons that will consider as criteria the place of habitual residence of the investigated or accused party, the nationality of the latter and the place in which the main financial damage has occurred.18 This is a slight version of the exorbitant power to choose that the Commission wished to confer on the European Prosecutor in the proposed Regulation.19 The idea was abandoned after being severely and rightly criticized by the academia20 as it represented a flagrant violation of the most elementary principles of the right to due process of law.

4.3 4.3.1

Model Proposals and Explanatory Notes Methodology and Approach

Apart from the informed and reasoned critique of the current situation, the main contribution of the present book is to propose the guidelines and models that, in our opinion, should determine possible future legislative modifications of the legal framework for prevention and settlement of conflicts of jurisdiction in criminal proceedings between EU Member States. 17

Art. 36(3) Regulation (EU) 2017/1939, cit. The use of this indeterminacy (“in principle”) is striking in contrast to the absolute power that the Commission seemed to want to confer on the Prosecutor’s Office in this matter in its proposal for Council Regulation COM 2013 (534) final, cit. For full information on the design of the organisational structure of the European Public Prosecutor’s Office, see recitals 20 ff. and Section I and II of Chapter III of the Regulation. 18 Art. 26(4) and (5) Regulation (EU) 2017/1939, cit. 19 See Art. 27(4) Proposal for a Council Regulation COM 2013 (534) final, cit. 20 In this sense, see AA.VV. (2013) and Moreno Catena (2014), pp. 440–441.

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Concerning this, and after an exhaustive study of the matter, our methodology and approach will be based on determining the main characteristics which we consider should contain a new future legal framework on this issue. Hence, we will determine what its legal basis should be in primary law; the secondary legislation to be adopted; its material scope; the main content and procedure; the role of Eurojust in the resolution of the conflict; and in what way a possible judicial review (national and/or supranational) of the procedure in its different phases should be guaranteed. Our analysis will be undertaken from the perspective of the viability of the proposed models and their optimal and potential effectiveness with respect to the current legal framework. Special attention will be paid to maximum respect for the procedural rights and safeguards of the parties and the principles of proportionality and subsidiarity that should accompany any Union action in this area. Applying the previous methodology, we are going to propose two alternative de lege ferenda models to address this problem: the first from an horizontal approach; the second, from a vertical or integrationist perspective. These approaches, although they have different names and subtleties, are also currently being explored and proposed by the most avant-garde scholars in this area. Logically, then, our models are inspired by these studies, and converge on certain points with some of these proposals, as will be duly observed throughout our analysis. However, our models have their own characteristics that differentiate them from the models proposed so far by academia, and in some points they employ a totally divergent approach from that maintained by the experts. Thus, a comparison and justification of our own proposals with respect to those by other authors will be part of the methodology and one of the added values of our study. The final and prime objective is to propose our own original and comprehensive models for preventing and settling conflicts of criminal jurisdiction and transfer of proceedings, including four original proposals for regulation addressed to the EU legislator.

4.3.2

Scope of Application

Determining the general scope of application is a preliminary question of paramount importance when designing any legislative model proposal. In this sense, as a preliminary indication, our models shall be limited to conflicts of jurisdiction in the criminal sphere, and they shall address the main problems arising from transnational situations of lis pendens and ne bis in idem stemmed from the existence of parallel criminal investigations and proceedings. However, in order to effectively tackle this matter, it is necessary to determine first what is to be understood by “parallel” and “criminal” proceedings and investigations when applying the different instruments that we are going to propose.

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4.3.2.1

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Parallel Investigations and Proceedings

The object and scope of application of the new Regulation should establish a new procedure for the prevention and settlement of conflicts of criminal jurisdiction applicable both to actual conflicts—those that have already occurred—and to abstract ones—those that might arise—. Furthermore, this should be restricted to “parallel” investigations or proceedings. For the purpose of this study, we should understand by parallel proceedings those situations in which several investigations and/or criminal proceedings in various Member States are being conducted against the same person, and which are concerned with or may refer to the same acts, regardless of their legal classification in each jurisdiction. These are situations which in themselves may conflict with the ne bis in idem principle, since regardless of the existence of various investigations or proceedings, only one of the final decisions eventually given will prevail over the others—in the absence of previous coordination, the first one to have been issued—, displaying the effects of res judicata and therefore affecting the rest of the pending investigations and parallel proceedings; these will irremediably be unable to continue so as not to violate the ne bis in idem principle. We are highlighting this concept (“parallel” investigations and proceedings) because some of the most significant academics in this field (Ligeti, Klip, Vervaele) believe that the object and scope of a future legal framework related to preventing and resolving jurisdictional conflicts should cover not only “parallel” criminal proceedings and investigations, but also those cases termed “multiple” proceedings. These authors define “multiple” proceedings as cases that are either directed against the investigated or accused person with respect to different acts committed in different Member States, or are directed against different investigated or accused persons regarding the same criminal acts. In other words, “multiple” proceedings are identified with transnational cases in which there is no identity in all the elements (subject and acts) in the ongoing investigations or proceedings, but there is an element of connection (linked offences), either with respect to the subject—the investigated or accused person—or in terms of the object—criminal acts—. Thus, in accordance with criteria regarding proper administration of justice, such “multiple” investigations or proceedings could require special coordination or even preventive accumulation, in order to avoid possible undesirable situations and/or be directly prohibited from a procedural point of view at a later point in the proceedings, e.g. ending in a violation of the ne bis in idem principle. While we understand and profoundly respect this view, we cannot fully share it. Although we agree with the opinion of these authors that multiple proceedings may represent an important source of conflicts of criminal jurisdiction, and that, therefore, this problem should be assessed and considered when designing and drafting any proposal for a comprehensive model for preventing and resolving such situations, we believe that “multiple” proceedings cannot per se lead to a conflict of criminal jurisdiction. Using practical examples, the fact that a French citizen committing a drug trafficking offence in Spain and, additionally, a fraud

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offence in Germany, may effectively require special coordination between the Spanish and German national authorities to agree on their being surrendered by means of an EAW, for the recovery of assets deriving from the commission of the crime or to ensure compliance with the sentence. In this case, there may, in fact, at no time be a risk of contradiction or overlap between the criminal jurisdictions of both Member States regarding prosecution of the acts. Similarly, a criminal organization dedicated to drug trafficking may have branches in several Member States, but if in each State the criminal proceedings are directed exclusively against local members of that organization, even though the existing sources of evidence may coincide or the issuance of an EIO and other instruments of mutual recognition may be required, there may not be a real risk of a conflict of jurisdiction. For those reasons, multiple proceedings shall remain outside of the main scope of application of our model on settlement of conflicts of jurisdiction albeit these situations shall be taken into account as a valid ground for requesting a transfer of proceedings.

4.3.2.2

Criminal Investigations and Proceedings Stricto Sensu

Providing a definition of criminal proceedings justifiably applicable at the European level is a particularly complex task. However, in terms of enforcing the provisions contained in international instruments such as the ECHR, it was soon considered necessary to establish minimum interpretation criteria on certain concepts that would make it possible to give sense to the rights and guarantees recognized therein. For this reason, the ECtHR has been developing through its case law the theory of the so-called “autonomous concepts”, a technique that is also used by the CJEU for the interpretation of certain concepts of EU law.21 By means of this technique, the terms contained in the European Convention on Human Rights are semantically independent, in such a way that their meaning and scope as interpreted by the ECtHR does not have to correlate to those that the same term has in national law.22 In accordance with this theory, the Strasbourg Court has established that the concept of accusation in criminal matters recognized in the European Convention on Human Rights should be interpreted autonomously in this context, and not exclusively in line with the provisions of the national legislation of the States parties.23

21 See e.g. Baláž, C-60/12, 14 November 2013, EU:C:2013:733. In this decision, the Luxembourg Court held that the concept of ‘court having jurisdiction in particular in criminal matters’ laid down in Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ L 76 of 22 March 2005) is an autonomous concept of EU law which must be interpreted as meaning that it covers any court conducting proceedings in which the essential characteristics of criminal proceedings are present. 22 Letsas (2004), p. 281. 23 An overview of this jurisprudence up to 2013 can be found in the Guide on article 6 of the European Convention on Human Rights. Right to a fair trial (criminal limb), Council of Europe, 2014, pp. 8–10.

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Thus, the term “charge” for the purposes of the European Court of Human Rights should be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”,24 while “criminal” should not be understood solely as those infractions defined in this way by national law. Rather, this term should be extended to other situations which, despite not having been formally classified as criminal at domestic level, should nevertheless be regarded as such for the purposes of the application of the European Convention on Human Rights.25 Consequently, the ECtHR has declared that certain administrative or disciplinary offences can by their nature be considered criminal, and thus fall within the scope— and protection—of Art. 6(1) of the Convention.26 In this context, certain administrative sanctioning procedures might be deemed to fall within the scope of the models proposed here, since they could be comparable to procedures of a criminal nature. For this reason, it is first necessary to determine the relationship between administrative sanctioning procedures and criminal jurisdiction in accordance with European and national case law. According to the jurisprudence of the ECtHR and the CJEU on the national dimension of the ne bis in idem principle that has been previously analysed in this book,27 a procedure which is formally an administrative sanctioning in accordance with the provisions of national law may lead to the imposition of materially criminal sanctions. This extreme situation should be determined on a case-by-case basis in accordance with the criteria established by the far-reaching ECtHR Engel.28 According to this judgment, there are three criteria for determining the criminal or non-criminal nature of an administrative sanction: the legal classification of the offence in accordance with national law, a preliminary and formal criterion stating whether or not the sanction is classified as criminal; the very nature of the offence, which takes into account factors such as who the recipients of the sanction are—if it is directed at the public in general or a specific group—, or the nature of the protected legal interest and the objective of the sanction—if reparation for damage is sought or if its purpose is repressive and preventive—; and the intensity or severity of the

24 Cf. ECtHR Deweer v. Belgium, 27 February 1980, CE:ECHR:1980:0227JUD000690375 § 46; Eckle v. Germany, 15 July 1982, CE:ECHR:1982:0715JUD000813078, § 73. 25 Cf. ECtHR Öztürk v. Germany, 21 February 1984, CE:ECHR:1984:0221JUD000854479, §§ 49 and 50. 26 Cf. ECtHR Lutz v. Germany, 25 August 1987, CE:ECHR:1987:0825JUD000991282; Malige v. France, 23 September 1998, CE:ECHR:1998:0923JUD002781295; Lauko v. Slovakia, 2 September 1988, CE:ECHR:1998:0902JUD002613895. 27 See Chap. 3. 28 ECtHR Engel and Others v. The Netherlands, 8 June 1976, CE:ECHR:1976: 1123JUD000510071, in which the Strasbourg Court, following the establishment and application of criteria for determining the actual nature of a sanction, held that some of the military disciplinary sanctions applied to the individuals in the specific case should be considered criminal in nature for the purposes of the Convention. For an analysis of Art. 6(1) ECHR, see Arangüena Fanego (2011), pp. 153–166.

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sanction applied, with those that imply deprivation of freedom or possession of a criminal record logically being of a criminal nature.29 Regarding the Spanish jurisprudence on the ne bis in idem principle in relation to the accumulation of administrative and criminal sanctions, the Constitutional Court has been qualifying its scope, distinguishing between the material and procedural aspects of this issue, and interpreting it in light of the ECHR and the jurisprudence of the ECtHR. After an initial jurisprudential stage in which the prevalence of criminal jurisdiction over administrative sanctioning power was considered absolute,30 and an intermediate stage in which this absolute prevalence was partially qualified by the admission that the finality and force of res judicata of an administrative sanction prior to the commencement of criminal proceedings made it impossible to convict a person for the same acts,31 our current constitutional case law still generally consider the criminal proceedings to have prevalence over the administrative sanctioning procedure; hence, there is no duplication of administrative and criminal sanctions when there is identity of subject, activity and grounds. To determine whether there is a sanctioning duplication prohibited by the ne bis in idem principle, it is necessary to previously analyze whether the administrative sanctioning procedure is comparable to criminal proceedings, which is simply a direct application of the European Court of Human Rights’ criteria for determining the actual nature of the procedure. Nevertheless, the Spanish Constitutional Court makes it clear that the duplication of sanctions will be admitted in those cases involving a special link between the administration and the affected subject32 and, more generally, in those situations in which after criminal conviction following the imposition of an administrative sanction for the same actions there is a reduction of the criminal sentence, in accordance with the actual administrative sanction already complied with—in other words, a compensation of penalties33—. That is, the principle will not be violated as long as there is no overlapping of sanctions. Thus, the current case law of our Constitutional Court34 corresponds, in essence, to that of the Strasbourg Court prior to ECtHR A and B v. Norway, and it has been repeatedly applied, as only to be expected, by ordinary jurisdiction bodies.35

29 In this regard, see the analysis of the ECtHR case law in the Opinion of Advocate General Campos Sánchez-Bordona, M., in the Menci case of 12 September 2017, EU:C:2017:667, §§ 44–52. 30 Cf. STC 77/1983 of 3 October 1983, ES:TC:1983:77; 159/1985 of 17 December 1985, ES: TC:1985:159; 107/1989 of 8 June 1989, ES:TC:1989:107; 222/1997 of 4 December 1997, ES: TC:1997:222. 31 Cf. STC 177/1999 of 18 November 1999, ES:TC:1999:177. 32 Cf. STC 234/1991 of 10 December 1991, ES:TC:1991:234. 33 Cf. STC 2/2003 of 16 January 2003, ES:TC:2003:2, FJ 6°. 34 Cf. STC 188/2005, of 4 July 2005, ES:TC:2005:188, FJ 2°; 77/2010, of 19 October, ES:TC:2010: 77, FJ 4°. 35 Cf. STS n. 102/2017, of 20 February 2017, ES:TS:2017:695, FJ 1°; SAP Burgos 44/2018, of 17 January 2018, ES:APBU:2018:44. However, in the field of tax offences, following the reform of offences against the Public Treasury of Arts. 305 ff. Spanish penal code operated by LO 7/2012

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After this brief analysis of the interpretation made by national and European case law, we can conclude that the border between the administrative sanctioning procedure and purely criminal proceedings at the European and national level is, in some occasions, somewhat diffuse, particularly in those Member States that use a doubletrack enforcement system. Moreover, albeit the CJEU has so far only addressed cases of national application of ne bis in idem where administrative proceedings were still pending after the criminal proceedings had been terminated by a final decision in a single jurisdiction (e.g. CJEU Menci, Garlsson Real Estate), it should be remarked that the transnational dimension of Article 50 CFREU could also be applied in the future to duplication of punitive administrative sanctions imposed in different Member States. As a result, it is feasible to assume that sanctions arising from a formally administrative procedure could be criminal in substance, and could eventually lead to a violation of the ne bis in idem principle. Hence, it might seem reasonable to also extend the procedure for the prevention and settlement of conflicts of jurisdiction to certain situations in which, at ttransnational level, a criminal proceeding and an administrative sanctioning procedure converge. However, in our opinion this option cannot be accepted, because even if in certain circumstances the administrative sanction may be considered “criminal” in terms of the application of the ne bis in idem principle, the sanctioning procedure that precedes it will still be of an administrative nature. Therefore, although both areas are manifestations of State ius puniendi, and even if certain inspiring principles of the criminal proceedings—e.g. legality, proportionality and non-retroactivity—are also applicable, albeit with nuances, to administrative sanctioning law,36 the scope of both areas is not identical;37 neither is the extent of the procedural rights and safeguards granted in each area for the parties involved, as criminal law is the authentic ultima ratio mechanism. For this reason, our model of prevention and settlement of conflicts of jurisdiction, as well as the proposals for legislative instruments of which it is composed, should limit the objective scope exclusively to investigations and criminal proceedings stricto sensu; that is, to the application of State ius puniendi by criminal jurisdiction courts.

(OJ n. 312 of 28 December 2012) and the consequent reform of the LGT (OJ n. 308 of 18 December 2003) and the addition of Art. 999 LECrim through Law 34/2015 (OJ n.N. 227 of 22 September 2015), the obligation of the administrative penalty proceedings in favour of criminal proceedings for the same facts cannot be considered absolute, cf. the legal reasoning used in AAP Murcia 2000/ 2018, 28 February 2018, ES:APMU:2018:200A. 36 In this sense, Cf. STC 18/1981, of 8 June 1981, ES:TC:1981:18, FJ 2°. 37 However, on the different theories on the distinction between administrative infringement and offence, see the doctrinal position in favour of the quantitative or unitary thesis of Gómez Tomillo and Sanz Rubiales (2017), pp. 75–112.

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4.3.3

Study on Viability

4.3.3.1

Inability of Unifying Grounds for Claiming Jurisdiction

Prior to considering both models, we should explain why we have dispensed with the possible design of a third model, set out and proposed by some of the most authoritative experts. This third model or approach could be identified, despite the different formulas used by each author, with a proposal to reduce, homogenize and/or unify criteria for claiming jurisdiction in the AFSJ in the European Union (criteria unification approach). Briefly, all the models based on this approach encourage the setting up of a sui generis criminal jurisdiction applicable to transnational crimes in the AFSJ based on the principle of territoriality, and the establishing of supranational criteria for claiming jurisdiction, which would be uniformly applicable in all European Union Member States. Thus, in the model proposed by Böse, Meyer and Schneider,38 a distinction is made between determining the competent jurisdiction to prosecute the crime (jurisdiction to adjudicate and to enforce) and deciding on the substantive law to be applied (jurisdiction to prescribe). This establishes a complete system of criteria and principles to determine jurisdiction for transnational crimes in the European Union. Among the different models proposed by Ligeti, Klip and Vervaele39 in their proposal for an instrument for the prevention and resolution of criminal jurisdiction conflicts, the third model proposed, termed “allocating the exercise of jurisdiction in criminal proceedings”, is based on establishing rules for the prior implementing and assigning of criminal jurisdiction within the scope of the AFSJ. This model lays down the primacy of the principle of territoriality and includes specific rules for determining the competent jurisdiction for crimes committed in the territory of several Member States. Mapelli Marchena briefly defined in her study40 a hypothetical model based on three principles: normative and imperative predetermination of the criteria for assigning exclusive jurisdiction, a procedure for the prevention and settlement of conflicts of jurisdiction, and a rule of lis pendens to regulate a situation of parallel proceedings. The premise for these models is both correct and straightforward; as the origin of the conflict lies in the continuation and proliferation of different national criteria for attributing jurisdiction and the existence of multiple criminal jurisdictions in the EU that can be exercised concurrently due to the application of these criteria, this problem would disappear if: (a) The exercise of criminal jurisdiction is prioritized by means of a single attribution criterion; preferably, that based on the principle of territoriality, voiding or

38

Böse et al. (2014), pp. 381 ff. Ligeti et al. (2017), pp. 54–60; Ligeti et al. (2018) pp. 70–76. 40 Mapelli Marchena (2014), pp. 503 ff. 39

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limiting the possibility of invoking other criteria for claiming extraterritorial jurisdiction. (b) The national jurisdictions of Member States are ultimately replaced by a European criminal jurisdiction, which has its own principles and attribution criteria and which implements a uniform and binding interpretation of these applicable on a general basis in all Member States. Despite the solid legal arguments with which the different authors in favour of this formula defend its future adoption by the European Union, and the fact that compliance with either of these two measures—especially the latter—would be quite effective for the prevention or even the elimination of both positive and negative conflicts of criminal jurisdiction in the AFSJ, we believe that such an approach at this time of the European integration process is too problematic in terms of viability to be considered a future and finally effective de lege ferenda proposal. The shortcomings which, with all due respect, we appreciate in these models can be synthesized as follows: (1) The suppression of extraterritorial criteria for claiming jurisdiction for the prevention of conflicts does not satisfactorily resolve the issue in all the cases in which the criminal acts are of a purely transnational or multi-territorial nature, and, consequently, have been committed in the territory of different Member States. This situation can occur today in a particularly simple way, both physically and successively, as in the case of transit or trafficking crimes (e.g. drug trafficking) or immaterially and simultaneously via telematic means, such as the use of networks and devices connected to the internet (e.g. cybercrime). (2) The overriding application of the principle of territoriality for claiming jurisdiction would not ensure that conflicts of jurisdiction automatically disappear. As we have clarified previously in this study, the conflict of criminal jurisdiction between Member States can even occur with the mere application of the territoriality principle by the national authorities of two or more Member States. This may happen either by means of a divergent interpretation of the principle— that is, the application by one authority of the theory of action and by another of the theory of result—, or even as a result of a joint interpretation of the principle according to the theory of ubiquity but leading to a different allocation of the locus delicti commissi. Thus, for a conflict of criminal jurisdiction to occur, it is not conditio sine qua non that extraterritorial criteria of attribution should concur, but it is sufficient for different interpretations of the principle of territoriality to coexist for this conflict to arise. This necessarily implies that, to avoid the origin of the conflict, it would not suffice to establish the principle of territoriality as the sole criterion for attribution, but it would also be necessary to establish a single interpretation of this principle, either in accordance with the theory of action or with that of result, since continuing with the theory of ubiquity would obviously not serve this purpose, as a certain interpretative margin prevails.

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This circumstance means that, in cases in which there is a divergent criterion regarding interpreting the territoriality principle, there cannot be an automatic attribution of jurisdiction. The model, then, must be supplemented with a provision in this regard, which will inevitably entail redirection through the subsidiary creation of a procedure for resolving and determining the competent criminal jurisdiction,41 similar to those already provided for in the horizontal and vertical models. Consequently, a model based exclusively on the primacy of the territoriality principle and on the marginalization or even suppression of extraterritorial attribution criteria in the AFSJ, albeit extremely invasive in terms of the transfer of State sovereignty, would not actually provide a solution different from that currently envisaged in other models based on the determination of jurisdiction through direct consultations between the national authorities involved. (3) In our opinion, a model of these characteristics could only be considered effective by totally unifying both the criteria for assigning criminal jurisdiction between the different EU Member States and their interpretation. This would completely suppress, by imposing a hierarchy of criteria for cases of a multiterritorial nature, the possibility of a conflict of criminal jurisdiction between Member States.42 This would amount to the creation of a sort of European criminal jurisdiction, which would replace all the attribution criteria established in the different national criminal jurisdictions for investigating and prosecuting crimes committed within the territory of the Union. We believe that this possible solution, which would imply an absolute invasion of the EU in the sphere of State ius puniendi and, consequently, of the sovereignty of the Member States, can neither succeed or be accepted by the Member States at this moment in time nor in the short term. Our opinion is reinforced by the fact that, in practice, Member States have not been able to reach a unanimous consensus on the establishing of a European Public Prosecutor’s Office,43 a measure which is objectively less invasive than the one proposed here. (4) Assuming that this unifying of attribution criteria, in the current stage of the European integration process, could meet with the approval of the Member States, it would be necessary to determine whether such an advance could take place in accordance with the current terms of the Treaties or whether, on the other hand, it would be necessary to revise the primary law that would allow for this option. In the case of the latter scenario, any proposal made on this matter

41

That solution is precisely foreseen by the third model proposed by Ligeti et al. (2017), pp. 56–58; Ligeti et al. (2018), pp. 72.74, Art. 6. 42 The model that most closely resembles this solution is the one proposed by Böse et al. (2014), pp. 381–411, Arts. 1–7. 43 It should be recalled that the Regulation establishing the European Public Prosecutor’s Office is the result of enhanced cooperation, since in the very tough negotiations that preceded its adoption, it became clear time and again that the Member States were unable to reach a consensus on the establishment of this body. In this regard, see the results of the Council meeting (general affairs) of 7 February 2017 (Council document 6035/17 of 7 February 2017).

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should in turn be accompanied by a proposal to amend the primary law. This would entail excessive complexity in the formulation of the model and straying from the main objective of the proposal, which, in our opinion, should be drawn up by taking as a reference the current terms of the Treaties in order to ensure its usefulness. (5) Even if we admit that there is in fact a legal basis in the Treaties that allows for the creation of this European criminal jurisdiction, it would be necessary to consider whether this solution respects the principles of proportionality and subsidiarity that should inspire any legislative initiative of the Union in this field. This, in our view, is quite doubtful in the present case in view of the legislative and legal precedents above mentioned. In brief, while this approach may be explored in the long term, it lacks viability in the short and medium term. Although we do believe that this model may become viable in the future and applicable, to a greater or lesser extent, to very specific areas of crime—for instance, offences such as those contained in the Directive to combat fraud against financial interests of the Union,44 in which the European Public Prosecutor’s Office already exercises its competences—, we do not believe that this model can be extended to all kinds of criminal offences. In our view, a general application should be the objective of any comprehensive proposal for preventing and settling conflicts of criminal jurisdiction such as those we propose in this book.

4.3.3.2

Inability of Models Based on Applying Foreign Substantive Criminal Law

Certain authors (Böse, Zimmerman)45 have reflected on the possibility of establishing a model that allows the national authorities of the Member States to apply foreign substantive criminal law. Using a formula widely applied in the field of private international law, national authorities would be empowered to implement the criminal law of another Member State for transnational criminal acts; therefore, it would not be essential to determine, a priori, the jurisdiction with the authority to prosecute the crime. However, this stance is not feasible at the present time. As Zimmerman himself argues,46 there are three main reasons that compel us to completely discard this option: (1) The additional difficulty it would imply for national authorities to be familiar with and eventually apply the substantive criminal law of all Member States. This could lead to erroneous interpretations and uncertainty regarding the

44

Directive (EU) 2017/1371, cit. Zimmerman (2015); Böse (2013), pp. 1–21. 46 Ibidem, pp. 13 and 14. 45

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meaning of key legal concepts, which is inadmissible in the criminal law field due to the validity of the lex certa principle. (2) The close relationship that exists in the legal systems of the Member States between substantive criminal law and criminal procedural law. As a result, the implementing of one cannot be understood without that of the other. This would necessarily entail our authorities not only becoming familiar with and correctly applying the substantive law of the other Member States, but at the same time they would be obliged to know or even apply in each specific case the procedural law provisions of the Member State where the criminal offence was allegedly committed. (3) Each conviction imposed by a criminal court has the purpose of producing a certain stigmatizing effect on the convicted person as an expression of the values of a given society. Such an effect is, therefore, hardly the same when a court applies a foreign criminal law that expresses the values of a different society. Agreeing wholeheartedly with the first two reasons given by the author for rejecting this approach, we must qualify our opinion on the third. We believe that at the present time the Member States share democratic values and a similar means of protecting these which, although it is not and need not be identical, must be considered comparable. In our view, then, despite there being certain important differences in terms of the protected values that represent each society in each State, such differences are not always so significant as to be considered totally incompatible. In this regard, and although we consider it unrealistic for many other reasons for a Member State to apply the criminal law of another State to a specific case, we do not believe that an alleged lack of compatibility between the values of different societies all belonging to the EU, and which, therefore, share common values,47 is a strong argument against the enforcing of foreign criminal law.

4.3.3.3

Improving Information Exchange as a Mandatory Previous Action

Given that the first obstacle that must be overcome in order to settle a conflict of jurisdiction is ensuring that its potential existence can be detected as early as possible, an effective information exchange duty and system on proceedings and criminal records at Union level should be implemented48 as a precondition to guarantee the success of any model for preventing and resolving conflicts of criminal jurisdiction. In this regard, there have recently been significant developments in this area within the European Union. A good example is the creation and application of the

47 However, this does not prevent, as Sanz Morán reminds, “that the criminal policy of each country may require specific legislative actions”. Sanz Morán (2008), p. 290. 48 Mapelli Marchena (2014), p. 510.

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European Criminal Records Information System (ECRIS),49 whose implementation deadline ended in 2012, despite not all Member States being effectively connected to the system until 2017. In view of its importance in the smooth functioning of the AFSJ, at the present time an improved ECRIS system has become one of the priorities of the EU. The Justice and Home Affairs Council, at its meeting on 7 August 2017,50 produced general guidelines for the future of the system in relation to information on sentences imposed on third-country nationals and stateless persons. These general guidelines were based on two legislative proposals to improve the system: a regulation establishing a centralized system to identify the Member States that may have information on criminal convictions imposed on a third-country national;51 and a directive,52 which would modify Framework Decision 2009/315/JHA, adapting it to this new centralized information system regarding third-country nationals. Both proposals have led to recently adopted Union acts: Regulation (EU) 2019/816 and Directive (EU) 2019/994.53 Responsibility for this system and the data it contains will correspond to the Member States and the European Agency for the Operational Management of Large-Scale Computer Systems in the Area of Freedom, Security and Justice (eu-LISA), which will be in charge of its implementation and operation. Building on this idea, the Commission, as part of its agenda for the digitalisation of judicial cooperation,54 has envisaged the creation of a collaborative IT platform for JITs to enable their members to communicate and exchange information in a

49 Council Framework Decision 2008/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from criminal records between Member States (OJ L 93 of 7 April 2009). 50 Outcome of the Justice and Home Affairs Council meeting held on 7–8 December 2017 in Brussels (Council Document 15567/1/17/REV 1 of 7 December 2017), p. 12. 51 Proposal for a Regulation of the European Parliament and of the Council COM(2017) 344 final establishing a centralised system for the identification of Member States holding information on convictions of third-country nationals and stateless persons (NTPs) in order to complement and support the European Criminal Records Information System (ECRIS-TCN system) and amending Regulation (EU) No 1077/2011. 52 Proposal for a Directive of the European Parliament and of the Council COM(2016) 7 final amending Council Framework Decision 2009/315/JHA as regards the exchange of information on third-country nationals and the European Criminal Records Information System (ECRIS) and replacing Council Decision 2009/316/JHA. Accompanied by the summary of the impact assessment as set out in the Commission Staff Working Document SWD(2016) 4 final of 19 January 2016. 53 Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April 2019 establishing a centralised system for the identification of Member States holding information on convictions of third-country nationals and stateless persons (ECRIS-TCN) to complement the European Criminal Records Information System and amending Regulation (EU) 2018/1726 (OJ L 135 of 22 May 2019); Directive (EU) 2019/884 of the European Parliament and of the Council of 17 April 2019 amending Council Framework Decision 2009/315/JHA as regards the exchange of information on third-country nationals and the European Criminal Records Information System (ECRIS) and replacing Council Decision 2009/316/JHA (OJ L 151, 7 June 2019). 54 Cross-border Digital Criminal Justice. Final Report, junio 2020, DOI: 10.2838/118529, p. 10.

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secure way. It should be noted that, at present and under normal circumstances, information exchange between JIT members takes place primarily through informal communications, such as email or messaging services or, at most, through secure but non-dedicated channels such as SIENA or the closed ecosystem offered by Eurojust. These channels are certainly a fast and direct method of transmission, but information in the case of the former is susceptible to being intercepted or compromised, while the use of the latter does not seem to be the most appropriate or to meet the high standard of personal data protection that prevails in Europe today. A dedicated EU-wide platform would allow information and evidence obtained during the investigation to be managed and exchanged in a secure and traceable way between team members, as well as allowing for digital meetings via encrypted videoconferencing. In this respect, the Commission’s initiative aims to create a dedicated IT collaboration platform, designed as a secure communication environment to enable greater efficiency in setting up and carrying out the work of the JITs. The platform would facilitate the exchange of information between authorities and between the case management systems of Europol and Eurojust, in full compliance with EU data protection rules on the legality of exchange of information and evidence, in particular Directive (EU) 2016/680.55 A comprehensive study of the criminal record information exchange system, the agenda for the digitization of judicial cooperation and its impact on the rights of persons subject to criminal proceedings would lead us to reflect on another different but closely related issue. We are referring to the protection of European citizens’ personal data, and, in particular, those investigated and accused in criminal proceedings in the European Union; such protection is not only prescribed by the Treaties,56 but it is also enshrined as a fundamental right in the Charter.57 This highly specialized study is welcomed by a large sector of Spanish academics, and we can refer to its results.58 Suffice it to say here that, in terms of ECRIS reform, the European Data Protection Supervisor (EDPS) issued an opinion59 in which they analyzed the main shortcomings encountered in the proposed Regulation. Emphasis was placed on the need to establish a greater respect for and definition of the rights of the interested parties, a clearer demarcation regarding shared responsibility between

55

Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4 May 2016). 56 See Art. 16(1) TFEU. 57 See Art. 8(1) CFREU. 58 See por todos Colomer Hernández et al. (2017); Colomer Hernández and Oubiña Barbolla (2015); Gutiérrez Zarza (2016); Gutiérrez Zarza (2010). 59 Opinion 11/2017 of the European Data Protection Supervisor on the proposal for a Regulation on ECRIS-TCN of 12 December 2017 (full text available in English, French and German). A summary of this opinion was published in OJ C 55 of 14 February 2018.

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the national control authorities of the Member States and eu-LISA, and an explanation of the EDPS' role in the model.

References AA.VV. (2013) A manifesto on European Criminal Procedure Law. Zeitschrift für Internationale Strafrechtsdogmatik (ZIS), 11/2013, 430–446 Arangüena Fanego C (2011) Initial approach to the right to a fair trial and to the demands of Article 6.1 ECHR, in particular, the right of access to a court (Art. 6 ECHR). In: García Roca J, Santolaya P (eds) Europe of rights: a compendium on the European Convention of Human Rights. Martinus Nijhoff publishers, Leiden, Boston, pp 153–166 Böse M (2013) Choice of forum and jurisdiction. In: Luchtman M (ed) Choice of forum in cooperation against EU financial crime. Eleven International, The Hague Böse M, Meyer F, Schneider A (eds) (2014) Conflicts of jurisdiction in criminal matters in the European Union. Volume II: Rights, principles and model rules. Nomos, Baden-Baden Colomer Hernández I (Dir.), Oubiña Barbolla S (Coord.) (2015) La transmisión de datos personales en el seno de la cooperación judicial penal y policial en la Unión Europea. Thomson ReutersAranzadi, Cizur Menor Colomer Hernández I (Dir.), Oubiña Barbolla S, Catalina Benavente M (Coords.), Alcoceba Gil JM (2017) Cesión de datos personales y evidencias entre procesos penales y procedimientos administrativos sancionadores o tributarios. Thomson Reuters-Aranzadi, Cizur Menor Estevez Mendoza L (2017) La instauración de la Fiscalía Europea como cooperación reforzada: problemas orgánicos y procesales. Revista de Estudios Europeos, extra:106–122 Gómez Tomillo M, Sanz Rubiales I (2017) Derecho administrativo sancionador. Parte General. Thomson Reuters-Aranzadi, Cizur Menor Gutiérrez Zarza MA (2010) La protección de datos personales como derecho fundamental del imputado, ¿también en el ámbito del proceso penal?. La ley penal: revista de derecho penal, procesal y penitenciario, 71 Gutiérrez Zarza MA (2016) Exchange of information and data protection in cross-border criminal proceedings in Europe. Springer Verlag, Berlin Hernández López A (2018) Garantías procesales en la prevención y resolución de conflictos de jurisdicción penal: marco normativo en la UE y perspectivas de futuro. In: Arangüena Fanego C, De Hoyos Sancho M (Dirs.), Vidal Fernández B (Coord.) Garantías procesales de investigados y acusados. Situación actual en el ámbito de la Unión Europea. Tirant lo Blanch, Valencia, pp 461–492 Letsas G (2004) The truth in autonomous concepts: how to interpret the ECHR. Eur J Int Law 15(2): 279–305 Ligeti K, Klip A, Vervaele JAE (2017) Draft Legislative Proposals for the prevention and resolution of conflicts of jurisdiction in criminal matters in the European Union. Result of the Project Prevention and Settlement of Conflicts of Exercise of Jurisdiction in Criminal Law. European Law Institute, Vienna Ligeti K, Klip A, Vervaele JAE, Robinson G (2018) Preventing and resolving conflicts of jurisdiction in EU criminal law: a European Law Institute Instrument. Oxford University Press, Oxford Mapelli Marchena C (2014) El Modelo Penal de la Unión Europea. Thomson Reuters-Aranzadi, Cizur Menor Moreno Catena V (2014) Fiscalía Europea y Derechos Fundamentales. Tirant lo Blanch, Valencia Panzavolta M (2018) Choosing the national forum in proceedings conducted by the EPPO: who is to decide? In: Bachmaier Winter L (ed) The European public prosecutor’s office. The challenges ahead. Springer, Cham, pp 59–86

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Patrone I (2013) Conflicts of jurisdiction and judicial cooperation instruments: Eurojust’s role. ERA Forum 14(2):215–225 Sanz Morán AJ (2008) Presente y futuro de la armonización del Derecho Penal Material. In: De Hoyos Sancho M (Coord.) El Proceso Penal de la Unión Europea. Lex Nova, Valladolid, pp 285–305 Vermeulen G, Beken TV, Steverlynck S, Thomaes S (2002) Finding the best place for prosecution: European study on jurisdiction criteria. Maklu, Antwerpen Vilas Álvarez D (2018) La competencia material de la Fiscalía Europea. In: Bachmaier Winter L (Coord.) La Fiscalía Europea. Marcial Pons, Madrid, pp 53–76 Weyembergh A (2011) The development of Eurojust: potential and limitations of Article 85 of the TFEU. New J Eur Crim Law 2(1):75–99 Zimmerman F (2015) Conflicts of criminal jurisdiction in the European Union. Bergen J Crim Just 3(1):1–21

Further Reading Ambos K (2018) International economic criminal law. Crim Law Forum 29:499–566 Brière C, Weyembergh A (eds) (2018) The needed balances in EU criminal law: past, present and future. Hart Publishing, Oxford Herlin-Karnell E (2012) The constitutional dimension of European criminal law. Hart Publishing, Oxford Klimek L (2017) Mutual recognition of judicial decisions in European criminal law. Springer, Cham Rafaraci T, Belfiore R (eds) (2019) EU criminal justice. fundamental rights, transnational proceedings and the European Public Prosecutor’s Office. Springer, Cham Satzger H (2019) Is mutual recognition a viable general path for cooperation? New J Eur Crim Law 10(1):44–56 Von Bogdandy A, Spieker LM (2019) Countering the Judicial silencing of critics: Article 2 TEU values, reverse solange, and the responsibilities of national judges. Eur Const Law Rev 15:391– 426 Wendel M (2019) Mutual trust, essence and federalism – between consolidating and fragmenting the area of freedom, security and justice after LM. Eur Const Law Rev 15:17–47 Weyembergh A, Joncheray N (2016) Punitive administrative sanctions and procedural safeguards: a blurred picture that needs to be addressed. New J Eur Crim Law 7:2

Chapter 5

De Lege Ferenda Proposals on Settlement of Conflicts of Criminal Jurisdiction: Model A—Horizontal Approach

5.1

General Aspects and Explanation

Our first proposal for a model is based on the application of the principle of sincere cooperation between national authorities, the same approach as that used in the current legal framework. The objective of this horizontal model, therefore, is limited to adapting the procedure for the prevention and settlement of conflicts of criminal jurisdiction currently in force to the material and formal provisions required by the new legal basis of the Lisbon Treaty. Particular attention is paid to strengthening the rights and procedural safeguards of those investigated or accused. In this regard, the measures that we propose and will develop in this horizontal model are the following: the replacement of Framework Decision 2009/948/JHA with a new instrument that establishes an improved procedure for preventing and resolving conflicts; the creation ex novo of a new legal instrument for transferring criminal proceedings between Member States of the Union; redefining and reinforcing Eurojust’s mediating role in conflict settlement; the provision of appropriate jurisdictional control for the purposes of this model.

5.2 5.2.1

Action 1: Replacing Framework Decision 2009/948/JHA Legal Basis and Proper EU Legal Instrument

The first measure proposed for establishing this new comprehensive horizontal model consists of replacing the current Framework Decision 2009/948/JHA on the prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings with a new apposite instrument in accordance with the possibilities © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 A. Hernández López, Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU, Comparative, European and International Criminal Justice 3, https://doi.org/10.1007/978-3-031-15691-5_5

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currently offered by primary law and the extension of the ordinary legislative procedure to this area. The legal basis in the Treaties for the adoption of this new instrument would be Art. 82(1)(b) TFEU: Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to: (b) prevent and settle conflicts of jurisdiction between Member States;

In accordance with the wording of the latter provision, which does not reserve and therefore does not exclude the use of any specific legislative instrument, we consider that either of the two Union legal instruments currently available for this purpose may be used:1 the directive and the regulation. Notwithstanding, we believe that the option that should prevail here is that of adopting a new Regulation to replace the current Framework Decision. Our reasoning for recommending a regulation instead of a directive essentially lies in the direct effect and application that characterize this instrument, as opposed to the need for transposition required by the directive.2 Although it is true that, due to the characteristics set out above, the regulation may be a less flexible instrument, we firmly believe that eliminating the need for transposition would have two main beneficial effects: first, it would minimize possible divergences between the different legal systems regarding implementing the procedure for preventing and resolving conflicts of jurisdiction; secondly, the disappearance of a maximum transposition deadline—which, moreover, is frequently breached by Member States3—would ensure the full operability and effectiveness of the new procedure and of all the elements that compose it in all Member States. This would simultaneously allow, at least in theory, a much more homogeneous and uniform application and use of the instrument by the national authorities of the Member States from its date of application.

1

On EU legislative instruments on judicial cooperation in criminal matters, see Catelani (2014), pp. 18–22. 2 Although the case law of the Court of Luxembourg on the direct effect of directives in order to protect the rights of individuals is applicable, it can only be invoked, in the absence of transposition, once the time-limit has expired. Cf. CJEU Van Duyn, C-41/74, 4 December 1974, EU:C:1974:133; Ratti, C-148/78, 5 April 1979, EU:C:1979:110; Becker, C-8/81, 19 January 1982, EU:C:1982:7; Marshall I, C-152/84, 26 February 1986, EU:C:1986:84. 3 As happened with the current Framework Decision 2009/948/JHA, cit., whose transposition deadline expired on 15 June 2012 and, according to the Commission's report on the implementation of this instrument, thirteen Member States -including Spain- had not yet complied with their obligation. See Report from the Commission to the European Parliament and the Council COM (2014) 313 final, cit. p. 6.

5.2

Action 1: Replacing Framework Decision 2009/948/JHA

5.2.2

111

Subject Matter and Scope

Operationally, the object and scope of the new Regulation should include the establishment of a new procedure for the prevention and settlement of conflicts of criminal jurisdiction, applicable specifically to positive conflicts. It shall also apply to both actual conflicts of jurisdiction—those that have already arisen—and to abstract conflicts—those that may potentially arise4—. In addition, it must be applicable both in the pre-trial phase, since prevention of the conflict can be much more effective the earlier the procedural stage in which it is detected, as well as in the trial phase, as it is necessary to guarantee resolution in those cases where a situation of international lis pendens already exists. Therefore, this procedure must be designed to be applied in all phases of criminal proceedings prior to completion of the trial. Regarding the limits of the scope of application, the prevention and resolution procedure regulated in this instrument must be limited only to investigations and criminal proceedings classified as “parallel”, in which, after the appropriate checks, it is concluded that there is or there may be the identity of subjects and criminal acts—eadem personae et idem factum—. We consider that including “multiple” proceedings within the scope of this first proposed Regulation would add a complexity to the instrument that seems to us completely unnecessary and even counterproductive, since the procedure would eventually be used for quite different purposes from those that were mainly the reason for its adoption. This would also blur the main objective of the instrument, which should simply be that of resolving a possible conflict of criminal jurisdiction. The exchange of information between authorities in relation to cases where there are “multiple” proceedings can take place at any time, without the need to resort to a procedure for the prevention and settlement of conflicts of jurisdiction and, what is important, this should be debated within or with the knowledge of Eurojust, either via a request for assistance5 or by

4 However, Zimmerman gives a completely different interpretation of the terms “concrete” and “abstract” conflict of jurisdiction, which we do not share, using two hypothetical cases as an example: in the first case, a Finnish citizen poisons a Danish citizen on German soil with the intention of killing him. The Danish citizen suffers the effects of the poison afterwards during a stopover in Sweden and dies. In this situation, the conduct described—namely murder in its different forms—is considered a crime in all jurisdictions potentially involved—Germany, Finland, Sweden and Denmark—and they all decide to criminally prosecute this act. This situation would give rise to what the author refers to as “concrete conflicts of criminal jurisdiction”. In a second case, a German citizen in Germany asks a compatriot to help him commit suicide by providing him with a lethal dose of barbiturates, which the applicant ingests immediately. However, the dose has no immediate effect. The suicidal person, disappointed, travels to Austria to reconsider his decision, but shortly after arriving in Vienna the drugs take effect and he dies. In this situation, both German and Austrian jurisdiction could have a bearing on the present case, but nevertheless the conduct described—namely assisted suicide—is not punishable under German substantive criminal law, whereas it is punishable under Austrian criminal law. The author refers to this situation as “abstract conflicts of criminal jurisdiction”. See Zimmerman (2015), pp. 3–8. 5 Art. 21 Regulation (EU) 2018/1727, cit.

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means of the general obligation of informing this agency, which is the duty of all national judicial authorities regarding all cross-border cases displaying certain features6 and transnational conflict situations that require special coordination.7 Thus, the assistance of Eurojust and the holding of coordination meetings is more effective in facilitating cooperation and coordination between judicial authorities, which are actually the kind of assistance required in order to conduct “multiple” proceedings, than resorting to an ad hoc procedure for the prevention and settlement of conflicts, such as that drawn up in the proposed Regulation. In this regard, and in relation to the powers of the national member provided for in Art. 4(2)(c) and (d) Regulation (EU) 2018/1727, setting up a JIT could be a much more efficient solution to combating the adverse effects deriving from these “multiple” proceedings, especially in those cases where the connecting factor is the criminal acts themselves. However, we have previously indicated that we share the view that “multiple” proceedings may represent the embryo of future conflicts, although not necessarily in terms of the exercise of jurisdiction, requiring special coordination among authorities. Therefore, even if we exclude these cases from the area of the Regulation for prevention and settlement of conflicts of criminal jurisdiction, we propose that “multiple” criminal proceedings should be included and addressed within the scope of the Regulation on transfer of criminal proceedings, which is part of this integral model and which we will present later, insofar as these cases are considered one of the specific enabling reasons justifying the transfer of criminal proceedings between Member States. As for negative conflicts of jurisdiction, the design of the procedure, based on exchanging information and identifying the existence of parallel proceedings, does not seem suitable for resolving these situations. Therefore, they should be outside the scope of application of this Regulation.

5.2.3

Procedure

In this horizontal model, we consider that the procedure for preventing and settling conflicts of criminal jurisdiction should follow the same guidelines outlined by the current Framework Decision 2009/948/JHA, which have been previously explained in this book.8 Consequently, the new procedure that we propose should still comprise two main phases, including a first phase mandating direct contact and exchange of information between national authorities, and a second establishing direct consultations, seeking a consensus and deciding on the conflict between the national authorities involved, along with a third additional and optional phase, which

6

See Art. 21(5) Regulation (EU) 2018/1727, cit. See Art. 21(6) Regulation (EU) 2018/1727, cit. 8 See Chap. 2. 7

5.2

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recognizes the possibility of requesting external assistance from Eurojust in the conflict. The latter’s role would still be limited to that of a kind of mediator between the positions adopted by the national authorities. Although we consider it appropriate to maintain the structural nucleus of the current procedure, we do believe it advisable to review the standing system. In de lege lata regulations, the locus standi to initiate the procedure of prevention and resolution of criminal jurisdiction conflicts lies solely and exclusively with the national authorities involved in this situation. Therefore, it says nothing regarding the role that the parties in the criminal proceedings—especially those investigated or accused in parallel proceedings—can play to initiate this procedure, even when forensic practice informs us that, in many cases, the potential conflict of jurisdiction is, in fact, detected when this is declared by the defence of the person under investigation or the accused before any of the national authorities involved.9 Awareness of this circumstance by the national authorities can be dealt with in different ways, in different procedural stages and in accordance with the procedural rules of each national law. In the absence of prior coordination between authorities, this notification may occur at the time of the first examination of the person under investigation or, much later, on the filing of an appeal. Having said this, we consider that what is a common circumstance in practice should be confirmed via the text of the proposed Regulation: that is, that the person being investigated or the accused should have the possibility of initiating the conflict settlement procedure. Accordingly, the Regulation must allow the investigated or accused person, as long as the circumstances of the case allow it—since this requirement cannot be enforceable in cases in which the investigation is secret or, for reasons of public order, there is justification that the investigated or accused party is not yet aware of an ongoing investigation against them—, to request or promote, before any of the competent national authorities involved and in accordance with the procedural rules of each national law, the initiation of the procedure for exchanging information and consultations in cases where this initiation and information sharing has not occurred spontaneously or ex officio. Including this provision in the Regulation has a double purpose: firstly, to recognize the possible participation of the investigated or accused person in the procedure from the outset, as a guarantee of their right to defence and, in particular, to a hearing; and secondly, to reduce the possible discretion of national authorities in terms of assessing the opportunity to initiate the procedure, since they are compelled to study the requirements regarding the initiation of the prevention

9

This is without prejudice to the fact that information can emerge in many other ways beyond strict judicial cooperation, notably through the exchange of law enforcement intelligence which, as a result of the application of the principle of availability, allows for a rapid and efficient exchange of available information on criminal investigations. This exchange has been developed by Framework Decision 2006/960/JHA on cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from crime or other crime-related property (OJ L 332 of 18 December 2007) and transposed in Spain by Law 31/2010 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (OJ n. 182 of 28 July 2010). Palomo Del Arco (2016).

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and resolution procedure when this is in the interest of one of the parties, thereby permitting possible control by a higher-level national court, or even a pronouncement by the CJEU via a preliminary ruling request.10

5.2.4

Deadlines

The proposed model should replace, as far as possible, the general provisions and undetermined legal concepts that are currently exploited by the legal framework currently in force, with clearer and more specific provisions that make it possible to reduce to the minimum a potential divergent interpretation of the text by the national authorities of the Member States involved. According to the current Framework Decision, the contacted authority shall respond to the request “within any reasonable time limit indicated by the contacting authority or, if no time limit is indicated, without undue delay”.11 Given the disparity of criteria used by the Member States when deciding on establishing a specific time limit for response,12 we believe that the new Regulation should establish a system of deadlines for responding to the request for exchange of information, regardless of the requesting authorities still being able to propose, when initiating contact, a different acceptable deadline they deem more convenient for fulfilling their purposes. This system of deadlines must distinguish between those cases considered of an urgent nature—especially, those in which the investigated or accused person is subjected to precautionary measures of a personal nature, fundamentally in a situation of provisional detention or custody—, where the response time must be much shorter than that established for cases deemed ordinary. Consequently, we consider that the periods established by the Spanish law for transposition of the Framework Decision on conflicts of jurisdiction are applicable:13 a general period of 15 days; a special period of 5 days for urgent cases, with the possibility of an extension of 30 days, limited to 15 days in urgent cases. Although these may seem excessively ambitious, they are shown to be reasonable ones, and compliance with them by the 10

A reference for a preliminary ruling will logically be made by decision of the national authority itself and in the terms that it establishes, as it is the only body entitled to assess whether the interpretation of a rule of the Union is necessary by virtue of Article 267 TFEU. This does not preclude a party from requesting that such a question be referred to the national authority for a preliminary ruling, but in any event it must be the national authority that decides whether it is appropriate to refer the matter to it. Cf. CJEU Kelly, C-104/10, 21 July 2011, EU:C:2011:506. On the preliminary ruling procedure, see García-Valdecasas Dorrego (2019); Martínez Gimeno (2012), pp.759 ff. and case law cited therein. 11 Art. 6(1) Framework Decision 2009/948/JHA, cit. 12 This vagueness has led Member States, when transposing the instrument, to set their own deadlines for replying in their national legislation—as is the case in Spain—or not to provide for specific deadlines at all—as is the case in Italy-. Cf. Art. 31(1) and (2) Act 16/2015, cit and Art. 5(1) Decreto Legislativo 15 Febbraio 2016, n. 29. 13 See Art. 31 Act 16/2015, cit.

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different European national authorities is perfectly plausible in view of the many options currently available for direct communication and the possibility that these authorities have to resort, if necessary, to the assistance of bodies and agencies specialized in speeding up and facilitating this communication—such as the EJN, liaison magistrates or even Eurojust—. We therefore understand that these same deadlines could be introduced in the text of the Regulation that we propose, provided that a rapid and efficient information transmission channel is guaranteed, and expressly including at all times the responsibility of the national authority to respond, even if there is non-compliance with these deadlines. This could lead us to reflect on the possible effect that a potential failure by the requested national authority to respond would have on the procedure. Discarding a limine the application of a legal effect with consequences for the proceedings, such as deeming the consultation procedure to have expired by preclusion of the maximum period established for its response,14 we might consider a disciplinary effect for the national authority that fails to fulfill its duty to respond without a justified cause. Such a disciplinary effect could be the imposing of a sanction on the non-compliant authority, the question therefore being whether the extent of the sanction should be established in the Regulation itself or if this should be left to the Member States.15 Generally speaking, we do not consider it appropriate or even possible for the extent of this disciplinary procedure to be specifically established in an instrument of the Union as is the proposed Regulation, since the peculiarities of each national justice system would make it impossible to establish a sanction compatible with each of the disciplinary systems operating in the Member States. Consequently, we believe that the definition and extent of a hypothetical disciplinary sanction for non-compliance should always be referred to the provisions of each national legal system, even though this formula could generate an asymmetric liability requirement system. In conclusion, if it is considered necessary to acknowledge disciplinary action due to failure to comply with the reply period, this should be limited to a disciplinary sanction, and a formula should be applied in the Regulation for referral to the provisions of the legal system of each Member State. In the case of Spain, this sanction, in the case of judges and magistrates, corresponds to the minor disciplinary penalty established for non-compliance with the terms of Art. 419(4) LOPJ, regardless of whether recidivism could elevate such non-compliance to the state of serious misconduct in accordance with Art. 418(18) LOPJ. In those cases in which the Public Prosecutor’s Office would be the competent authority, penalties similar to the latter would be applied in accordance with the provisions of Arts. 64(3) and 63(10) EOMF.

14

This effect cannot be maintained for reasons of coherence and in application mutatis mutandis of the doctrine maintained by the CJEU with regard to the time limits for the resolution of the EAW procedure in CJUE Lanigan, cit. 15 E.g. in the Spanish case, this would lead to the imposition of a minor sanction provided for in Art. 419(3) LOPJ “Unjustified or unmotivated failure to comply with the legally established deadlines for issuing a decision in any kind of case heard by the judge or magistrate”.

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Procedural Effects in National Criminal Proceedings

Initiating a procedure for the prevention and resolution of criminal jurisdiction conflicts is an attempt to resolve an anomalous and problematic procedural situation which, if it were to continue, could produce undesired effects for the interests of all parties concerned. Thus, national procedures cannot and should not remain oblivious of the application of an ad hoc procedure to resolve an extraordinary situation, such as that of international lis pendens, which will result, at best, with a decision on which jurisdiction is the most appropriate in terms of carrying out the investigation and prosecution of the criminal facts. For this reason, and unlike the silence prevailing in current European legal framework, specific consideration should be given to the procedural consequences at national level that will arise as a result of the consultation procedure. To ensure the effectiveness of the prevention and resolution procedure, it is both logical and necessary to suspend, at the very least, all types of decision making on the merits of the case in the national criminal proceedings in question; otherwise there is a risk of adverse effects deriving from the conflict even after the consultation period has begun. This suspension may take the form of an optional recommendation to be respected by the Member States, in that the national authorities are requested to refrain, as far as possible, from carrying out actions that may jeopardize the purpose of the procedure. Alternatively, it may be an obligation, imposed on the national authorities involved, to prohibit, either in a general or limited way, certain decisionmaking acts, such as passing judgment or declaring full dismissal of the case. However, this recommendation or requirement should not be applied on a general basis to decisions regarding the imposing or maintaining of precautionary measures. In our opinion, the new Regulation should recognize and combine both solutions. As a result, it should contain a general recommendation for suspension, in that the national authorities refrain, insofar as the individual circumstances of the case allow, from issuing resolutions which are particularly significant in the proceedings, a formula similar to that now found in the Regulation of the European Public Prosecutor’s Office in relation to the right of evocation;16 and, at the same time, an absolute prohibition regarding issuing a decision on the merits of the case with the force of res judicata throughout the duration of the prevention and resolution procedure, which is a solution similar to that introduced by Italy in its law of transposition of the current Framework Decision.17

16 See Art. 27.2 Regulation (EU) 2017/1939, cit. During the time limits provided for in paragraph 1, the national authorities shall refrain from taking any decision under national law which might have the effect of preventing the European Public Prosecutor's Office from exercising its right of referral. On this issue, see Roma Valdés (2018), pp. 575–598. 17 Art. 10 Decreto Legislativo 15 Febbraio 2016, n. 29, cit.

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117

Connecting Factors

One of the key omissions that de lege ferenda legislation should resolve is the inclusion within the Regulation itself, either in its articles or as an annex, of a delimiting of the connecting factors to be considered when determining which jurisdiction of all those involved in the conflict is better placed to investigate and/or prosecute the criminal acts. This point is key, since a lack of foresight in this regard, such as that which currently exists—the reference currently made to the guidelines issued by Eurojust in 2003 in the recital 9 of the Framework Decision 2009/948/JHA cannot be considered as such—, cannot be considered compatible with respect for the principle of legal certainty. The current system allows the open recognition and consequent heterogeneous application of criteria based on the provisions envisaged in each national legal system—if they even exist—, leading in turn to a possible quasi discretionary invoking of connecting factors to justify the decision by the national authorities involved. This list of connecting factors should include those that can and should be taken into consideration by the authorities when attempting to reach consensus, as well as others which as a general rule cannot and should not be applied as guidelines for a final decision on the conflict.18 On the basis of the above, and for reasons of rationality and utility, we believe that the most appropriate way to draw up these criteria is to take as a reference the most recent guidelines on this matter published by Eurojust.19 The latter include both the criteria that should be considered and those that should not be considered, pointing out as one of the factors to avoid the punitive powers and the severity of the associated penalties in each Member State. However, the wording of the criteria issued by Eurojust is not clear enough, since the list of factors mixes the ones to be taken into account and those that should not be considered in what is, in our opinion, an unnecessarily confusing list of factors. Consequently, there is a choice of two different options to be included in the Regulation: making an en bloc reference to the guidelines published by Eurojust at any given time, with the introduction of an express incorporation by reference clause in the new Regulation; or directly and expressly transferring these guidelines to the text of the Regulation, maintaining their operative part and adapting them if it is deemed necessary. In the case of an en bloc reference to the most current guidelines officially published by Eurojust, this could be made by including in the Regulation a generic incorporation by reference provision in this regard. The principal benefit among

18

This same approach is taken by Ligeti et al. (2017); Ligeti et al. (2018), p. 52. In fact, this distinction between connecting factors to be considered and those not to be considered is already present in the last Eurojust guidelines on jurisdiction, albeit in our opinion this distinction is not as clear as it should be. 19 Published in Eurojust Annual Report 2016, pp. 55–58 and currently available at https://www. eurojust.europa.eu/sites/default/files/Publications/Reports/2016_Jurisdiction-Guidelines_EN.pdf.

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those we can highlight here is the fact that this referral would guarantee that these criteria would always be kept up to date, without the need to resort to a future amendment to the Regulation. As for the main negative aspects, the referral would be made to a text (the Eurojust guidelines) which, at present, is nothing more than a soft law document published by the Agency with no binding legal value and which is not, therefore, a legislative instrument created with the direct participation of the EU institutions. In addition, recognition and amendment of the criteria would depend quasi exclusively on the activity carried out in this regard by Eurojust, and it would mean legitimizing its criteria in this area by a provision contained in a hard law instrument. The latter scenario would definitely be inconsistent with our horizontal model, given that a decision-making role for Eurojust in the conflict will not be recognized. If, on the other hand, we opt to reproduce in full in the instrument the applicable connecting factors based on the latest guidelines published by Eurojust, this list of criteria would be expressly established in the text itself, either in the articles or by means of an annex. In this case, the wording can be fully nuanced during the adoption process of the future Regulation; therefore, the main advantage of using this channel is that control over the wording and recognition of the criteria would be maintained by the Member States, without the need to resort to the decision of an EU agency (Eurojust) or to depend on its subsequent actions. As a logical consequence, the main disadvantage of this option lies in its rigidity, since once these criteria have been established in the Regulation, any modification, deletion, inclusion or adaptation of these would necessarily entail the amendment of the instrument, with the obvious additional difficulty this would imply. A possible solution to this problem would be to include an open criterion, in the form of a numerus apertus list, which would allow the introduction of new criteria in the future, e.g. adding a reference to the possible application of any other factors that could be of relevance according to the circumstances of each case. Yet resorting to this technique would be a clear contradiction with regard to the ultimate objective we are seeking to establish by expressly including the criteria in the instrument, which is none other than to provide the highest possible degree of legal certainty for all parties in determining jurisdiction. Among the two solutions examined above, we believe that the most viable and consistent solution in the spirit of the horizontal model we propose here is to draw up a list of criteria, based on Eurojust guidelines, and to expressly include such criteria in the text of the Regulation. Regarding the value that national authorities should give the criteria in each specific case, two approaches can be employed: authorizing a system that allows free assessment by national authorities of the criteria applicable to the specific case, so that there is no priority among them; or opting for a hierarchical criteria system, in which national authorities are compelled to consider about the priority of certain criteria over others in their final decision.

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This second solution, which represents the determining of a hierarchical order of factors, has been defended by some authors.20 These suggest the use of a model that combines a clear-cut hierarchy among the factors provided for by legislation, together with the subsidiary application of an advisory procedure. The model would be as follows: firstly, the list of factors would determine which of the potentially competent Member States has a closer connection with the origin of the conflict, which would promote respect for the right to an ordinary judge predetermined by law, and would exclude the temptation for the competent judicial authorities to resort to forum shopping to the detriment of the investigated or accused party. Also, it would be necessary to introduce flexibility clauses to allow the national authorities of a Member State, which have a legitimate interest to continue prosecuting but which are not initially competent by virtue of the hierarchy of factors foreseen above, to make an exceptional request for exercising its jurisdiction in preference to the others. The procedure would be similar in those cases in which, after applying the hierarchy of criteria, the competent jurisdiction could not be determined. These clauses could be invoked by the national authorities as an “emergency brake”, thus activating the need for a consultation period.21 Briefly, the proposal of these authors is to prioritize determining the competent jurisdiction in accordance with a hierarchical list of factors. Only if it is not possible to determine jurisdiction using this first criterion, or in the event of a Member State claiming a legitimate interest in pursuing a particular criminal conduct regardless of its relative position in the hierarchical ranking—e.g., because it is understood that such conduct affects essential interests or national security—, will a round of consultations to reach a consensual solution be initiated.22 In our opinion, the main positive point of this solution is the commitment to a clear determination of the factors to be considered when resolving a conflict of jurisdiction; this would encourage respect for the principle of legal certainty and the right to an ordinary judge predetermined by law. However, predetermination by means of a hierarchical list of factors will not always satisfy all the relevant interests that should be considered in a specific case of conflicts of jurisdiction. In fact, a strict application of this hierarchy can lead to a technical “tie” between the extent of the connection of two or more jurisdictions. This would necessarily result in having to resort to another means of resolution, which in the given proposals is that of establishing a subsidiary consultation procedure. This last solution would not represent a real improvement with respect to the current system, based precisely on mutual and direct consultation between national authorities.

20

Zimmerman (2015), pp. 1–21; Ortiz Pradillo (2012), p. 535; Ortiz Pradillo (2016). Zimmerman (2015), pp. 15–16. 22 Ibidem, p. 18. 21

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Other authors23 alternatively propose, should it not be feasible to establish a hierarchical system of criteria for assigning criminal jurisdiction at the international level, that the conflict of jurisdiction be resolved on the basis of the cumulative concurrence of criteria for such attribution and connecting factors. In this way the ultimately competent jurisdiction would be the one that could put forward a greater number of attribution criteria and/or connecting factors, e.g. in cases in which both jurisdictions can apply the principle of territoriality, that of active personality could serve as a resolution criterion. Although the adoption of a hierarchical system of attribution criteria would undoubtedly represent a step forward in respect of the principle of legal certainty, in our opinion this possibility should be rejected outright. Despite the fact that the absence of a hierarchical order can be understood as a disruption to the principle of legal certainty for the investigated and accused party—which we have systematically criticized throughout this book—, it is not realistic to argue that a hierarchical and/or cumulative application of connecting factors will always lead to the most appropriate solution for all the parties involved in a conflict of criminal jurisdiction, not only from the point of view of the legitimate interests of those investigated or accused, but also from that of the national authorities’ interest in the prosecution of the crime. The practice of international legal cooperation in criminal matters demonstrates that each conflict of jurisdiction inevitably displays peculiarities that should be carefully considered for a balanced decision to be reached, especially in terms of applying material justice, the ultimate goal of criminal law, to the detriment of merely formal justice. We believe that establishing a hierarchy of factors is inappropriate, since it would make it impossible for the national authorities to adopt a suitable solution in terms of proper administering of justice in view of the circumstances of each specific case. Consequently, although we understand that no priority should be established among the different factors, we do consider it appropriate to include some type of determining or corrective element. This could be the obligation to give a “specific reasoning” to the final decision adopted by the national authorities, in such a way that they are to provide a detailed explanation in the decision adopted, in accordance with their national law, of all the factors that have and have not been considered and applied, and the essential reasoning that has influenced their resolution. This specific reasoning is not only necessary from the point of view of the principle of legal certainty and the requirement to reason judicial decisions, but it would also serve as an additional guarantee and internally improve the possibilities of appeal for the investigated or accused party, if they believe that criteria that should have been taken into account have not been applied or that their application has been arbitrary.

23

Ortiz Pradillo (2012); Ortiz Pradillo (2016), pp. 35–36.

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121

Final Decision and Agreement

Unlike what occurs in the current Framework Decision 2009/948/JHA, the procedure adopted in the Regulation that we propose here should be formally concluded by means of a written act, signed by both national authorities, in which consultations are terminated and the result, whatever this may be, is recorded. The essential content of the document will vary depending on the decision adopted by the national authorities: (1) If the latter agree that no type of additional action is necessary because they understand that there is no risk of a conflict of jurisdiction, this will be declared in a reasoned manner in the decision, without any need for further pronouncements. (2) If the national authorities verify that there is already a conflict of jurisdiction, or agree that there is a risk of this occurring, they will duly relate in their agreement the measures to be adopted in the future to prevent and avoid it, including, where appropriate, a statement acknowledging which jurisdiction is better placed to prosecute. In the latter case, it will be mandatory that, together with the reasons for the decision, the criteria and connecting factors which have and have not been applied are recorded, and also that there is, where appropriate, an express statement on the need to resort to a transfer of criminal proceedings to make the agreement effective. (3) If national authorities are unable to reach a consensus on the existence of a conflict of jurisdiction or on a response to this issue, they should record this in writing, stating the reasons and points on which there is controversy. In such an event, any of the authorities concerned may declare its intention to request the assistance of Eurojust, in which case it should be recorded and forwarded to the Agency, in accordance with Article 21 of the Eurojust Regulation, so that it may exercise its powers in this matter, without prejudice to the national authorities being able to request the same assistance at a later stage. In all cases, the content of the decision adopted by the national authorities after the end of the settlement procedure should be regarded as a procedural act issued by the judicial authority for the purpose of being recognized by the national law of each Member State, thereby making it possible for it to be challenged at domestic level by the parties involved. In the Spanish case, due to the reasoning we have considered appropriate at all times, this procedural act should take the form of an order or, in exceptional circumstances, a decree of the Public Prosecutor’s Office when the latter has competence.

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De Lege Ferenda Proposals on Settlement of Conflicts of. . .

Action 2: New Instrument on Transfer of Criminal Proceedings Rationale

Having previously determined that concentrating the different criminal proceedings within the jurisdiction deemed to be best placed is, in most cases, the ideal procedural solution to prevent and settle a positive conflict of criminal jurisdictions, the second main action to be adopted in the horizontal model that we propose is the adoption of a new instrument at European Union level on the transfer of criminal proceedings between Member States. We consider that this regulation should go hand in hand with that determining the procedure for preventing and resolving conflicts, as it is essential to provide coherence overall and make the whole model we propose for resolving conflicts of criminal jurisdiction in the EU comprehensive. However, the first question to be resolved is whether or not the regulation that we are going to propose in this area should be undertaken as part of the same Regulation for establishing a new procedure for preventing and resolving conflicts put forward in the section above, or if, on the other hand, it should be regulated autonomously by means of a different instrument. In other words, it is necessary to determine in advance whether the transfer of criminal proceedings and their regulation should be included as a chapter of the same Regulation on prevention and resolution procedure24 or whether it may be more appropriate to address the regulation of both matters in separate but obviously closely related instruments. As has been repeatedly shown in this book, both matters are so closely related that, in our opinion, the proper functioning of the entire prevention and settlement procedure will depend on the creation of a legal framework, today virtually non-existent, on the transfer of criminal proceedings between Member States. However, we believe that the most viable solution in the short and medium term is to forego the joint regulation of both areas in the same instrument and, rather, to opt for autonomous regulation in two different EU instruments. The main reasons why we understand separation to be beneficial for the viability of the proposed model for preventing and resolving conflicts of criminal jurisdiction are the following: (1) The need to explore other ways of resolving the conflict: although concentrating criminal proceedings can and should be seen as the ideal procedural solution to resolving in a suitable manner most cases of international lis pendens—consequently, regarding positive actual conflicts of jurisdiction, rather than simply abstract ones—, there are other cases that, by their very nature, can or in fact should be resolved by using less “aggressive” or “drastic” formulas in terms of transferring state sovereignty, such as creating a joint investigation team or dividing up the investigations. That is why we believe that to exclusively include

24 Approach defended by Ligeti et al. (2017), pp. 35–36 and 46–47; Ligeti et al. (2018), pp. 49–50 and 61–62; and also by Böse et al. (2014), pp. 443 and ff.

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the transfer of criminal proceedings when regulating conflicts of jurisdiction, to the detriment of other alternative mechanisms that could help to resolve the conflict, would send out the message, in our opinion completely erroneous, that any conflict of criminal jurisdiction must be resolved via such a transmission, with no allowance made for intermediate solutions. In fact, this is currently the underlying message in the current Framework Decision on prevention and resolution of conflicts of jurisdiction, the wording of which only specifically mentions this solution,25 as well as certain national laws transposing the Framework Decision, as in the case of the Italian.26 (2) The proven effectiveness of a gradual approach: after the unsuccessful experience of the failed Framework Decision on procedural guarantees of 2004, which sought to harmonize by means of a single instrument all essential procedural rights and guarantees at Union level, and the subsequent success of the Stockholm Program roadmap, based on the gradual and successive adoption of different directives to regulate those same rights,27 it was again evident how, when approving new Union instruments in a field as delicate as criminal law— substantive and procedural—, a gradual approach is still a much more effective strategy from the point of view of enhancing European integration.28 Consequently, we believe that combining both aspects in a single instrument would entail a global delay with regard to their being approved and, at best, merely the acceptance of a minimum proposal that would satisfy all Member States. In our opinion, it would be much more feasible, in terms of the successful approval of this model, for the Member States to reach agreements to regulate each matter. Separating both areas would mean, in the event of a possible lack of agreement on the approval of any one of the proposed instruments, that the procedure of approval of the other could continue independently, thus avoiding a joint impasse. Additionally, the separation of both regulations would make their subsequent amendment more flexible in the face of future priorities and European policy requirements in criminal justice; this would permit each instrument to be readapted in response to these new priorities without the need to undertake a major reform affecting the model as a whole.

25

See recitals 11 and 13 and Articles 10 and 13 of Framework Decision 2009/948/JHA, cit. See Arts. 4, 8 and 11 of Decreto Legislativo 15 February 2016, n. 29, cit. 27 Proposal for a Council Framework Decision COM(2004) 328 final of 28 April 2004 on certain procedural rights in criminal proceedings throughout the European Union. See Vidal Fernández (2010), pp. 189–194. 28 Being always present the famous quote “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity”, made by Robert Schuman in its statement of 9 May 1950. 26

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Legal Basis and Proper EU Legal Instrument

Unlike what occurs with conflicts of criminal jurisdiction, there is no express reference in the Treaties to this issue. Nevertheless, the legal basis for addressing the new Regulation we propose is recognized, in our opinion, in Art. 82(1) (d) TFEU.29 Our justification for preferring this provision as an enabling legal basis to the detriment of others is the result of an examination of an initiative of the Framework Decision on the transmission of proceedings in criminal matters (the initiative), proposed by sixteen Member States before the Lisbon Treaty came into force.30 This initiative used as a legal basis Art. 31(1)(a) TEU31 prior to the Lisbon Treaty, a provision that we understand equivalent to the current 82(1)(d) TFEU.32 Thus, our proposed new instrument is to be adopted through ordinary legislative procedure and, once again, it is possible to choose either of the two Union legislative instruments available for this purpose (directive or regulation). Once the question regarding the legal basis has been resolved, it is necessary to determine again which of these two legislative instruments of the Union should be used to regulate this issue. In this regard, we continue to prefer a regulation rather than the directive, for the same reasons given supra in relation to our proposal for a Regulation for the prevention and the settlement of conflicts of criminal jurisdiction, which, we believe, it is unnecessary to reiterate here.

29 Art. 82(1)(d) TFEU: “(. . .) The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures (. . .) (d) to facilitate cooperation between judicial or equivalent authorities of the Member States in relation to criminal procedure and the enforcement of decisions (. . .)”. 30 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Lithuania, the Republic of Latvia, the Republic of Hungary, the Kingdom of the Netherlands, Romania, the Republic of Slovenia, the Slovak Republic and the Kingdom of Sweden with a view to a Council Framework Decision 2009/. . ./JHA of . . . on the transfer of proceedings in criminal matters (OJ C 219 of 12 September 2009). 31 Former wording of Art. 31(1) TEU: “Common action on judicial cooperation in criminal matters shall include, inter alia: (a) the facilitation and acceleration of cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, through Eurojust, in relation to cases and the enforcement of decisions”. 32 Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to: (. . .) (d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to criminal procedure and the enforcement of decisions.”

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125

Subject Matter and Scope

The object and scope of this Regulation should be limited exclusively to the regulation of a procedure for transferring criminal proceedings between EU Member States. By comparison, the wording of the initiative was much more ambiguous in this regard: The purpose of this Framework Decision is to increase efficiency in criminal proceedings and to improve the proper administration of justice within the area of freedom, security and justice by establishing common rules facilitating the transfer of criminal proceedings between competent authorities of the Member States, taking into account the legitimate interests of suspects and victims.33

Therefore, it could be conceived that the original intention of the initiative was not so much to establish a procedure for the transfer of proceedings, as to establish common standards to facilitate this transfer. Nothing is further from reality, since the initiative defined an authentic transmission procedure between Member States, even including a specific form for this purpose. We believe that this terminological precision for establishing a transmission procedure is important so as to better understand the real function of the mechanism supporting the proposed Regulation. Regarding its relationship with other international instruments, it is evident that the scope of this Regulation will overlap with that of the 1972 European Convention on the transfer of criminal proceedings in the ratifying Member States involved. For this reason, we deem it necessary to introduce in the Regulation a clause clarifying its enforcement and its relationship with respect to other international conventions and agreements, stating its preferential application in relations between Member States of the EU with respect to any other international instruments with the same intended scope of application. However, this preference should be limited to those agreements on the transmission of proceedings considered more restrictive in terms of cooperation—such as the 1972 European Convention—, allowing the possible prevalence and application of bilateral or multilateral agreements between Member States that are more favorable for transmission. As a result, we believe that it is possible to introduce a formula similar to that used in Art. 1 of the 2000 Convention on Mutual Assistance in Criminal Matters between EU Member States, in conjunction with the European Convention on Mutual Assistance in Criminal Matters of 1959, which does not exclude, and thereby makes it possible to maintain, the validity of the most favorable bilateral agreements.34

33

Art. 1 Initiative for a Framework Decision on the Transfer of Proceedings in Criminal Matters, cit. Art. 1(2) Convention on Mutual Assistance in Criminal Matters between Member States of the European Union, cit. This Convention shall not affect the application of more favourable provisions of bilateral or multilateral agreements between Member States, nor, as provided for in Article 26(4) of the European Mutual Assistance Convention, the application of provisions relating to mutual assistance in criminal matters agreed on the basis of uniform legislation or of a special 34

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Waiving or Discontinuing Proceedings

One of the main characteristics required of this Regulation is that it should serve as an enabling legal basis for waiving investigation and prosecution by the transmitting national authority, a fundamental issue for those States, such as Spain, which are strongly bound by the principle of legality, and which therefore cannot apply or waive prosecution of the criminal case without this previous legal clearance. As a result, we are of the opinion that a specific provision should be included in the proposed Regulation, acting as prior legal authorization and, therefore, legitimizing the waiving of investigation by the transmitting State in favor of the receiving State. In this regard, we think that the formula employed in the original wording of the initiative on transmission of proceedings is sufficiently clear, suitable and proportionate, and that it could be reused for this purpose in the proposed Regulation.35 This investigation waiver will follow the procedure established in each jurisdiction by national law. To cite an example of comparative law, in Italy the transfer of proceedings results in a situation of subsequent inadmissibility (sopravvenuta improcedibilita’).36 In the case of Spain, we believe that the case should be provisionally dismissed, pending the termination of the transmitted procedure by a final judicial decision in the receiving State, whereby full dismissal would be decreed. However, our current LECrim does not include this specific reason among the general situations in which provisional dismissal37 or full dismissal38 is applicable, although it does consider others that may be comparable, such as the res judicata exception.39 Perhaps in the Spanish case it would be appropriate to add a new specific reason in the current wording of Arts. 637 and, particularly, 641 LECrim, which provides for the transmission of procedures, to thereby comply with the provisions of the proposed Regulation.

system providing for the reciprocal application of mutual assistance measures in their respective territories”. 35 Art. 6 Initiative for a Framework Decision on the Transfer of Proceedings in Criminal Matters, cit. 36 See Art. 11(2) Decreto Legislativo 15 February 2016, n. 29, cit.: “2. Nel caso di accordo sulla concentrazione dei procedimenti in altro Stato membro, il giudice dichiara la sopravvenuta improcedibilita’”. 37 Art. 641 LECrim; “Provisional dismissal will apply where: (1) The perpetration of the crime giving rise to initiation of the case is not duly justified; (2) The pre-trial proceedings show that a crime was committed and there is not sufficient evidence to accuse a specific person, or persons, as perpetrators, accomplices or accessories”. 38 Art. 637 LECrim: “Full dismissal will apply where (1) There is no reasonable evidence of having perpetrated the act that gave rise to the case being initiated; (2) The act does not constitute a crime; (3) The accused appear exempt from criminal liability as perpetrators, accomplices or accessories”. 39 Art. 666(2°) LECrim. Perhaps another case of full dismissal in our LECrim that is remotely similar to the present case would be the possibility of the estimation of an article of prior pronouncement by declinatory jurisdiction of article 675 LECrim in relation to article 666(1°) LECrim.

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Conditions for Requesting a Transfer

Along with this legal empowerment, it is necessary for the proposed Regulation to fully establish the nature of the causes that may motivate the national authority to resort to a transfer of criminal proceedings. As we mentioned in section supra when dealing with the problem of so-called “multiple proceedings”, the new mechanism for transmission of proceedings must be capable of covering not only cases deriving from a conflict of criminal jurisdiction stricto sensu, but also those that may require transmission and/or concentration of criminal proceedings in accordance with sound criteria in terms of administering justice. In other words, the Regulation should go beyond the material scope of conflicts of criminal jurisdiction and “parallel” proceedings, and also be applied to those borderline scenarios that may not eventually represent the origin of a conflict, as in the case of “multiple” proceedings. Returning to the conditions that may justify the transfer of criminal proceedings, the initiative in this regard considered the following criteria40: (a) the offence has been committed wholly or partly in the territory of the other Member State, or most of the effects or a substantial part of the damage caused by the offence was sustained in the territory of the other Member State; (b) the suspected person is ordinarily resident in the other Member State; (c) substantial parts of the most important evidence are located in the other Member State; (d) there are ongoing proceedings against the suspected person in the other Member State; (e) 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; (f) the suspected person is serving or is to serve a sentence involving deprivation of liberty in the other Member State; (g) enforcement of the sentence in the other Member State is likely to improve the prospects for social rehabilitation of the person sentenced or there are other reasons for a more appropriate enforcement of the sentence in the other Member State; or (h) the victim is ordinarily resident in the other Member State or the victim has another significant interest in having the proceedings transferred. The list, which is in the form of numerus clausus, satisfies clearly diverse interests: sections (a), (b) and (h) justify transmission with different criteria regarding attribution of jurisdiction—territoriality, active or passive personality and domicile—; sections (d) and (e) refer to situations corresponding to “multiple proceedings”; section (c) involves a pro auctoritate utility criterion in relation to obtaining evidence; sections (f) and (g), meanwhile, justify transfer based on criteria of

40

Art. 7 Initiative for a Framework Decision on the Transfer of Proceedings in Criminal Matters, cit.

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suitability pro personae, especially from the point of view of the reintegration of the investigated or accused party. We consider that the criteria set out in this list satisfy the broad objective this instrument must have in terms of transcending the regulation of conflicts of criminal jurisdiction and, therefore, we are in favor of all of these being maintained in the proposed Regulation. Provided that one of these criteria is met, transfer of criminal proceedings be considered justified. However, the above list has one key deficiency: it omits any reference to the prevention and settlement of conflicts of jurisdiction and to the ad hoc procedure created for this purpose by the European Union. This omission is completely understandable if we consider that, at the time of drafting this initiative, the Framework Decision on conflicts of jurisdiction had not yet been formally approved.41 In view of this circumstance, and in order to give coherence to the comprehensive horizontal model we propose for preventing and resolving jurisdictional conflicts, it is necessary to complete this list with the inclusion of at least one new criterion that expressly refers to the possibility of transferring criminal proceedings; this will be on the basis of what has been agreed by the national authorities involved in accordance with the procedure provided in the proposed Regulation for the prevention and settlement of conflicts of criminal jurisdiction. Therefore, not only would there be recognition of the outcome of this procedure as an enabling cause to transfer proceedings, but there would also be an indirect legitimizing of the application of all the criteria and connecting factors that have guided the reasoning of the final decision adopted in that procedure. This will necessarily be based on the criteria and connecting factors established in the Regulation of conflicts of criminal jurisdiction set out in the previous Section and would make it possible to link both instruments and thus guarantee the required coherence that should characterize the system proposed.

5.3.6

Procedure

An explanation of how the procedure of transmission and reception of criminal proceedings should be put into practice—that is, its formal development—is a technical-procedural question the details of which it is not appropriate to discuss here. Notwithstanding, we believe that the procedure established in the initiative42 can be taken as a reference for this matter. This involves use of a standardized form, included in the instrument itself,43 in which the essential data necessary for initiating

41

Although it is true that there was already a draft text on the regulation of this instrument, see Council Document 8535/09 of 19 May 2009. 42 Art. 10 Initiative for a Framework Decision on the Transfer of Proceedings in Criminal Matters, cit. 43 See Annex Initiative for a Framework Decision on transfer of proceedings in criminal matters, cit.

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and processing a direct request for transmission between authorities are included.44 In the light of this, it is appropriate to reflect on certain procedural aspects that should be properly guaranteed during the procedure. Regarding the possible intervention of the parties involved in the national proceedings, the transfer procedure regulated in this instrument should ensure that the rights and guarantees of the investigated or accused person will be respected throughout this procedure.45 In particular, it should ensure that, at a minimum, they will have the right to be informed about the existence of and circumstances behind the procedure, as well as to be heard and to express what is in their legitimate interest, prior to the final decision on the transfer being issued. Additionally, there should be the possibility of having subsequent access to an effective judicial remedy in the terms that we will analyze in greater depth in the corresponding Section.46 Besides these specific rights, it should also be stipulated that the procedural guarantees of the investigated or accused person are respected throughout the transfer procedure between judicial authorities.47 For this purpose, an express reference to the directives on procedural guarantees for the investigated and accused party in criminal proceedings should be included in the Regulation itself; this legal resource is currently often employed in the Union’s legislative instruments for judicial cooperation in criminal matters. This inclusion may form part of the Regulation’s articles, with a provision to enshrine this referral—as in the case of the seizure Directive48 or in that of the Regulation of the European Public Prosecutor’s Office49—; or one or more of the Regulation’s recitals may be devoted to a more general recognition of the validity of these directives—the model used by the EIO Directive50—. However, in our opinion the inclusion of this clause would be a purely formal matter since, from the point of view of the material protection of such rights, the obligation to respect the fundamental rights recognized in the CFREU in

44 Including but not limited to contact details of the transmitting and receiving authorities, details of the suspect or accused person, details of the victim, description of the facts, the basis on which the transfer of the proceedings is requested and the stage of the proceedings. 45 Although this objective should be ensured by the Regulation through an appropriate development of the procedure designed in its articles, it may be of particular interest to include an article on procedural guarantees, which lists and delimits the scope of such rights and guarantees, as is currently the case, for example, in Article 41 of Regulation (EU) 2017/1939, cit. 46 See Sect. 5.5 in this Chapter. 47 On the delimitation of the scope of the autonomous EU law concepts ‘judicial authority’ and ‘judicial decision’ in their application in the context of the EAW, see Cf. CJEU Poltorak, C-452/16, 10 November 2016, EU:C:2016:858; Özçelik, C-453/16, 10 November 2016, EU:C:2016:860; Kovalkovas, C-477/16, 10 November 2016 EU:C:2016:861. 48 See Art. 8(7) of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and the proceeds from crime in the European Union (OJ L 127 of 29 April 2017). On this Directive and its implementation in Spain, see Gónzalez Cano (2016). 49 See Art. 41 of Regulation (EU) 2017/1939, cit. 50 See recital 15 of Directive 2014/41/EU, cit.

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the application of Union Law,51 as well as the provisions of the ECHR, will always remain. In relation to the victims of crime, we have already repeatedly noted in this book the enormous divergences that exist in the national laws of the Member States regarding their role and possible actions in criminal proceedings. Notwithstanding, the European Regulation that we propose can and should guarantee that, as a minimum, the victim will be duly informed and with sufficient advance notice of the possible transfer of criminal proceedings to another State. This is without prejudice to their being able to exercise any other rights and/or guarantees recognized by the national law of the Member States. Ultimately, the wording could be very similar to that already considered in the initiative on the transfer of proceedings: the transferring authority being required to take into account the interests of the victim, to respect the rights recognized at national level and, in particular, to be informed of the transmission.52

5.3.7

Procedural Effects in National Criminal Proceedings

Initiating the transfer procedure will entail different procedural consequences depending on where it originates. These vary ostensibly in terms of whether or not transmission is carried out as a result of a prior agreement to resolve a conflict of criminal jurisdiction signed by the national authorities. Should transmission be the result of an agreement reached on the basis of the Regulation regarding conflicts of criminal jurisdiction—which is relevant scenario for our study—, in accordance with the Regulation that we have proposed, the procedure should be suspended or provisionally discontinued as a consequence of direct consultations taking place between the national authorities involved. If transmission of criminal proceedings is based on other criteria that are not the result of the procedure between national authorities established in the proposed regulation for the prevention and settlement of conflicts of criminal jurisdiction, prior suspension of national criminal proceedings may not have occurred, in which case it should be agreed on from that very moment. The duly transferred proceedings should be governed by the national law of the receiving jurisdiction from the moment its valid transmission is understood to have taken place. To ensure the proceeding’s full validity and operability in the jurisdiction of the receiving Member State, all the acts of investigation carried out by the issuing authority should be recognized, providing these do not contravene applicable public order rules or provisions of the receiving State, together with procedural acts undertaken by the parties.

51 52

Art. 51 CFREU. Art. 9 Initiative for a Framework Decision on the Transfer of Proceedings in Criminal Matters, cit.

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A more problematic and clearly crucial issue will be to guarantee that this recognition is extended to the validity of the sources of evidence obtained in proceedings in the transmitting States. In this sense, applying the principle of mutual recognition may not be a sufficient legal basis for such validation to occur automatically, as this situation may conflict with the rights of contradiction and defence granted to the investigated or accused person. In this regard, ECHR case law has considered that the right to a fair trial has been violated when conviction has been based, exclusively or predominantly, on the statements of witnesses that have not been the subject of an adversarial argument in a public hearing and in the presence of a judge by the investigated or accused, and now sentenced, party.53 This implies the obligation on the part of the national authorities to take all necessary measures to allow the accused the opportunity to question witnesses for the prosecution, which implies endeavoring to guarantee their appearance.54 However, the ECHR has declared that the unavailability of these prosecution testimonies may not constitute a violation of Art. 6(1) of the ECHR, providing such unavailability cannot be attributed to a lack of diligence and/or efforts on the part of the national authorities.55 At the national level, as pointed out by some authors,56 the case law of the Spanish Supreme Court generally accepts the legitimacy of actions carried out abroad in the execution of a request for assistance, in accordance with the rules of the requested State.57 However, regarding the admissibility of evidence in the framework of a transfer of criminal proceedings, Rodríguez Medel58 concludes that the provisions currently applicable in Spain are those of Art. 26(1) of the European Convention on the transfer of criminal proceedings of 1972, and, in the specific EU-Spain setting, in procedures transmitted via Eurojust by a judicial authority of another State in favor of Spanish jurisdiction, Art. 27(4) of Law 16/2015, already discussed in this study, which advocates: Once the initiation or extension of the procedure has been accepted, investigation carried out by the State that transfers the procedure will be considered valid in Spain, provided that this does not go against the fundamental principles of the Spanish legal system. In the event of a crime that is not prosecutable in Spain except at the request of a party, investigation

53 Cf. ECtHR Graviano v. Italy, 10 February 2005, CE:ECHR:2005:0210JUD001007502; Hümmer v. Germany, 19 July 2012, CE:ECHR:2012:0719JUD002617107; Lucà v. Italy, 24 September 2013, CE:ECHR:2013:0924JUD004387004. 54 Cf. ECtHR Sadak and Others v. Turkey, 17 July 2001, CE:ECHR:2001:0717JUD002990096; Pello v. Estonia, 12 April 2007, CE:ECHR:2007:0412JUD001142303. Estonia, 12 April 2007, CE: ECHR:2007:0412JUD001142303. 55 Cf. ECtHR Gossa v. Poland, 9 January 2007, CE:ECHR:2007:0109JUD004798699, §§ 57-65. 56 Rodríguez Sol (2015, 2016). 57 Cf. STS n. 974/96, of 9 December 1996, ES:TS:1996:7041, FJ 1°; STS n. 1521/2002, of 25 September 2002, ES:TS:2002:6159, FJ 1°; STS n. 236/2003, of 17 February 2003, ES: TS:2003:1001, FJ 2°; STS n. 1142/05 of 20 September 2005, ES:TS:2005:5375, FJ 5°; STS N. 1281/2006, of 27 December 2006, ES:TS:2006:8462 FJ 5°. On the principle of non-inquiry and the impact of STS n. 116/2017 of 23 February, ES:TS:2017:471, see Gascón Inchausti (2019), pp. 32–63. 58 Rodríguez-Medel Nieto (2016).

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commenced in the transferring State will be considered valid without this requirement, if the person who has the right to file criminal proceedings expressly accepts the investigation carried out and lodges the corresponding complaint.

This type of privilege that transnational evidence has for the national legal system in the context of transferred criminal proceedings should be the general rule prevailing within the EU Member States, so as to expedite the legitimacy of transnational evidence in these cases. However, we agree with the doubts expressed by Gascón Inchausti59 regarding the possible harmful presumption that the guarantees of lex fori (the law of the requesting state) have been respected in obtaining evidence in accordance with the lex loci (the law of the requested state), and we share this author’s opinion that, at all events, assessment and discussion by the defence of the investigated or accused person as to whether or not the safeguards of the lex fori60 have been respected should be allowed. In conclusion, regarding evidence, the transmission of criminal proceedings may have to be supplemented by issuing requests for assistance in order to gather such evidence and guarantee its validity, or, in more specific terms for the EU context, to issue European Investigation Orders. Once investigation has been waived and transfer of the procedure is in place, then rationally the transmitting Member States must refrain from investigating and prosecuting the acts underlying these proceedings. However, the extent of this abstention should be also specified. Firstly, we believe that the obligation to refrain cannot be absolute, but rather that this is conditional on the receiving State effectively exercising its jurisdiction over the acts justifying transmission. This means that once the criminal proceedings have been transmitted, in the event of the receiving Member State finally deciding not to continue with proceedings, any of the transmitting Member States should be able to regain its own jurisdiction over the acts, in view of its empowerment to lift suspension of its national procedure. This possible “recovery” or “reactivation” of jurisdiction over events initially behind the transmission of criminal proceedings should be contemplated, providing the decision by the receiving national authority not to continue proceedings has not been taken after an exhaustive examination regarding the guilt or innocence of the investigated or accused person. In this latter scenario, we must understand that this possibility is not permitted as a result of the direct application of CJEU case law on the ne bis in idem principle.61 In addition, it should be clearly stipulated that during the time proceedings remain duly suspended, statute of limitations for the crime will be interrupted.62 Secondly, it should be guaranteed that the provisional suspension of proceedings in the transmitting Member States cannot and should not be considered a “final

59

Gascón Inchausti (2012), pp. 1250–1252. Ibidem, pp. 1252–1265. 61 Cf. CJEU Turansky, cit; Miraglia, cit; Kossowski, cit. See supra Chap. 3, Sect. 3.1. 62 This issue affects the substantive criminal law of the Member States, and in the case of Spain it would affect the current wording of Art. 132(2) of the Penal Code. 60

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decision”, for the purposes of the provisions of Art. 54 CISA and Art. 50 CFREU, in order to prevent possible negative effects when applying the transnational principle ne bis in idem. Thirdly, and what is an immediate consequence of the two previous statements, it will only be possible to decree the definitive filing of suspended criminal proceedings in the transmitting Member States once these have been able to substantiate the existence of a final judicial decision on the merits of the case in the receiving Member State, in accordance with the requirements defined by CJEU case law. To ensure due compliance with the three previous premises, the proposed Regulation should maintain the channel of information between authorities beyond the transfer of proceedings. This duty extends up to the end of the criminal proceedings in the receiving State, especially in cases of early termination not involving conviction or acquittal. Consequently, even if criminal proceedings are understood to have been duly transferred, this procedure should not be taken as fully completed until the outcome of the proceedings transmitted is reliably reported to the transmitting national authorities.

5.3.8

Grounds for Refusal

Finally, as is the case with any instrument of judicial cooperation in criminal matters,63 it is necessary to establish in the Regulation the reasons that can justify the denial or non-execution of a transfer of criminal proceedings. For this purpose, we have two different models that can be imported into our proposal: the grounds for refusal established in the Convention for the transfer of criminal proceedings of 197264 and, especially, those listed in the initiative on the transfer of proceedings.65 These reasons can be summarized as follows: (a) The event giving rise to the request must constitute an offence under the law of the Member State (double criminality principle). (b) Risk of infringement of the ne bis in idem principle. (c) The person under investigation cannot be held criminally responsible because of his age. (d) There is an immunity or privilege of jurisdiction in the receiving legislation. (e) Statute of limitations for criminal prosecution. (f) Amnesty. (g) The criteria which motivated the transfer of the proceedings on the grounds that the offence has been committed in whole or in part in the territory of another Member State or in the interest of the victim are not considered to be fulfilled. 63

E.g. Art. 3 and 4 Framework Decision 2002/584/JHA, cit.; Art. 10 Directive 2011/99/EU, cit. Art. 11 European Convention on the Transfer of Proceedings in Criminal Matters, cit. 65 Arts.11 and 12 Initiative for a Framework Decision on the Transfer of Proceedings in Criminal Matters, cit. 64

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(h) The request for transfer of the proceedings has not been based on one of the established good cause grounds and the receiving authority considers that the transfer will not be in the interests of efficiency and the proper administration of justice. The inclusion of these grounds for refusal is more concerned with their possibly applying to requests for transmissions of “autonomous” criminal proceedings, and less so to those deriving from an agreement to determine jurisdiction decided by national authorities, in which putting forward reasons such as those recognized in sections (b), (g) or (h) would be a contradiction in terms. For these reasons, and although our work focuses on these latter cases, we have argued that the objective of the proposed Regulation is to serve as a legal basis for any transfer of criminal proceedings between Member States, regardless of the origin of the request. Thus, we consider that this list is wide and rigorous enough for our proposal for a Regulation for the transfer of proceedings to be generally applied, so the aforementioned reasons may form part of our proposed text.

5.4

The Role of Eurojust

Given that what characterizes this proposed horizontal model is that the prevention and settlement of conflicts of criminal jurisdiction between EU Member States will continue to depend solely and exclusively on the final decision taken and agreed upon by the national authorities involved, we must conclude that Eurojust’s role in this procedure should continue to be limited to assistance, facilitation and, where appropriate, possible mediation between the positions adopted by these different national authorities. Such functions, in fact, correspond to those the Agency currently possesses. Consequently, both the new Regulation that we have proposed for preventing and resolving conflicts of jurisdiction, as well as Eurojust’s own regulation, should jointly contemplate and define the functions that the European agency may exercise within the framework of this procedure, including when and how it is to exercise them.

5.4.1

Role in the Proposed Instruments on Prevention and Settlement of Conflicts

The third optional phase of the procedure established in our proposed Regulation of prevention and resolution of conflicts includes requesting the assistance of Eurojust in the conflict. Therefore, this should include a provision that makes explicit mention to the possibility of referring the case to Eurojust, at the request of any of the parties involved. As we have indicated, this referral should be of a subsidiary nature, applied

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only when the national authorities themselves are unable to reach an agreement on how to proceed in the face of a conflictive situation. The characteristics of this provision may appear analogous to those already laid down in the current Framework Decision.66 However, we propose several important nuances: (1) An extension of Eurojust’s competence: the Agency should have the power to exercise its functions within the framework of a prevention and resolution procedure in each and every case in which there is a conflict of criminal jurisdiction, and not have only limited action in cases that formally belong to its scope of material application, currently defined by Art. 3 of Regulation (EU) 2018/1727. We believe that this limitation is currently meaningless, since in practice Eurojust can exercise its powers in a complementary manner outside the limits of Art. 3(1) at the request of a competent authority, a possibility which is also recognized in Art. 3(3) Regulation (EU) 2018/1727. Neither can this be justified from the point of view of proportionality, because if the intention of this limitation is to filter cases on the basis of their nature in order to refer only those of greater complexity to Eurojust, this screening can be carried out by the national authorities themselves whenever they understand that the matter does not require the external intervention of the Agency for it to be resolved. We should remember that although there may be a general obligation to inform Eurojust, requesting its assistance is not mandatory. (2) Transmission only at the request of one of the parties: Eurojust cannot exercise its powers in the event of a conflict of jurisdiction without prior request from a legitimate party. By legitimate party, in relation to the prevention and resolution procedure, we must exclusively understand the competent national authorities involved, which are the only ones entitled to initiate this procedure by the current legal framework. Nevertheless, it is appropriate to consider the relevance of a broader interpretation of the concept of legitimate party, in terms of considering the extension of this standing to refer the matter to Eurojust to the investigated or accused person or, even, to the victim. In this regard, we believe it is entirely implausible and contrary to all European current legal framework that the investigated or accused can directly request the assistance of Eurojust in the conflict, since the current purpose of this agency is to promote and facilitate cooperation between national authorities at their request, and never to be at the service of the claims made by the parties. In addition, we consider that this channel should neither be considered de lege ferenda, at least from the point of view of a horizontal model such as the one we propose in this Section, since this possibility of direct request by the investigated or accused person would not be in accordance with its inspiring principles, based on the premise that Eurojust’s intervention is facultative and that its decision is not binding for the national authorities.

66

Art. 12 Framework Decision 2009/948/JHA, cit.

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However, and in tune with the formula that we have already proposed above regarding the locus standi of the investigated or accused person to initiate the prevention and resolution procedure, consideration may be given to introducing an express recognition in the proposed Regulation empowering the investigated or accused party, before the competent national authority, to have the matter referred to Eurojust, should the national authorities be unable to reach an agreement themselves. The effects of including this express recognition would be analogous to those already mentioned.

5.4.2

Powers Granted in Eurojust’s Regulation

We have stated that, in this horizontal model, Eurojust’s role should be limited to that of mediation which it currently possesses. Therefore, the powers that Eurojust has in this area should be maintained in the new Regulation (EU) 2018/1727. Yet we do believe it necessary to clearly define the mediating functions Eurojust can perform, as well as how and under what circumstances it should exercise these. In our analysis of the current legal framework, we indicated how Eurojust can exercise its powers in relation to both a positive and negative conflicts of criminal jurisdiction between Member States, by means of up to three different mechanisms: the reaching of an agreement between the national members of the Member States involved, in order to request that the national authorities initiate an investigation or proceedings on specific acts or recognize that one of these may be in a better position to investigate and prosecute such acts; through a request addressed to the national authorities involved, with the same scope as the previous mechanisms, but issued by the College; and finally, via a non-binding opinion on the matter issued by the College, to be forwarded to the interested Member States.67 Of these three main mechanisms that Eurojust has at its disposal in a conflict of criminal jurisdiction, we consider the first two to be essentially identical in terms of their object and purpose; therefore, in our opinion, the second mechanism—agreement within the College—should be eliminated, and only the first—agreement between the national members involved—and the third—issuance by the Eurojust College of a non-binding opinion—be maintained. Proposing this new classification of the arrangements that Eurojust can apply to exercise its functions in the event of a conflict of jurisdiction has, as its main objective, that of clarifying the powers exercised by the agency at any given time and in what capacity. The latter’s opinion may be of a more informal or practical nature, e.g. an agreement between the national members involved after a level II

67

In accordance with Eurojust's internal operating procedure, such a proposal will be drafted by a national member other than those involved, who will act as rapporteur, and must be approved by the College by a two-thirds majority. See Guidelines for the application of Article 7(2) and (3) of the Eurojust Decision, adopted by the College of Eurojust on 17 July 2012.

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meeting or as a consequence of a level III coordination meeting, or in the form of a more formal act, with the issuance of a written opinion by Eurojust as a collegiate body, adopted by a qualified majority following a collective vote. Consequently, the two levels of action that characterize Eurojust’s activity—through its national members and through the College—would be maintained, but providing greater legal certainty for both the parties and the authorities involved in the conflict. This would avoid the confusion concerning use of the mechanisms and Eurojust’ powers, which, in our opinion, has historically existed.68 Moreover, although it is true that Eurojust will not have with this horizontal model any type of binding power or decision-making capacity regarding the resolution of the conflict, it is necessary to guarantee that the investigated or accused person is apprised, as far as the circumstances of the case allow it, of the content of the consultations and decisions that occur in relation to this within Eurojust. As a result, the investigated or accused person should be empowered with the right to put forward pertinent arguments or, at least, to be heard before a final decision is taken that will have extremely important consequences for the latter. Given the merely advisory nature of Eurojust’s decision, we consider that this right of allegation of the investigated person can be fulfilled by ensuring a prior hearing before the national authorities, in accordance with the provisions established at national level in the internal procedural law of each Member State. In the Spanish case, this hearing is currently guaranteed in relation to positive conflicts of jurisdiction and is held at two different moments: after confirmation of the existence of parallel proceedings, in which there is a common hearing procedure of ten days for the Public Prosecutor’s Office and other parties to discuss the opportunity, suitability or unsuitability of concentrating criminal proceedings in the same State and the transferring of jurisdiction by the Spanish authority;69 secondly, should intervention by Eurojust have been requested, and after receiving its non-binding opinion, there is a five-day hearing procedure involving the Public Prosecutor and, where appropriate, the other parties, before a resolution is adopted in the form of an order on the continuation or non-continuation of proceedings before Spanish jurisdiction.70 68

Confusion that can even be seen in the specialised doctrine itself. In the aforementioned Prestige case, part of the doctrine states that the recommendation issued by Eurojust on this case, which dates from 2006, was carried out through the issuing of a non-binding opinion in accordance with the power conferred on Eurojust by Article 7(2) of the Decision. In fact, this power was not expressly attributed to Eurojust until after the adoption of the 2009 strengthening Decision, so we must conclude that it is materially impossible for Eurojust to use a power that it did not have at the time of the facts. For all these reasons, we believe that in the Prestige case Eurojust necessarily had to use the power conferred in Art. 7(a)(ii) of the Decision, which, although it is true that it may have taken the form of an opinion at the time—and hence generated the prevailing confusion—, it must be attributed a different scope to the power that was currently recognised in Art. 7(2) of the Eurojust Decision. This assessment is shared by the group of Eurojust experts in Lopes da Mota et al. (2006), p. 20. 69 Art. 32(1) Act 16/2015, cit. 70 Art. 32(4) Act 16/2015, cit.

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Judicial Review National Level

In order to improve the current unfortunate situation, our model recommends the inclusion, in both the new Regulation on the prevention and settlement of conflicts of criminal jurisdiction and the Regulation on the transfer of criminal proceedings, of specific references to the possibility of the investigated or accused person being provided with a remedy at national level to challenge the decisions of the national authorities. This inclusion would represent a significant novelty with regard to the current system, since neither the Framework Decision on prevention and conflicts of jurisdiction nor the European Convention on the transfer of criminal proceedings makes any reference, not even a generic one, to this possibility. Although it is true that the content of the Framework Decision should be transposed to national law, and that in this transposition of Union Law the obligation deriving from Art. 47 of the Charter concerning the right to effective judicial protection and the need to ensure the right to an effective remedy—recognized accordingly in Arts. 6 and 13 ECHR— are subsumed, an explicit reference to this effective remedy is necessary. As we pointed out previously, the possibility of a judicial review must extend, at a minimum, to both the decision to determine which jurisdiction of all the affected parties is better positioned to carry out the investigation or prosecution—the determination of jurisdiction—, as well as to the opportunity to resort, where appropriate, to the concentration of criminal proceedings agreed on by the judicial authorities— the transfer of proceedings—, which will be the obvious and necessary procedural consequence for compliance with the previous decision in most cases. Having said this, the main question raised by this dual possibility of challenge is whether it can occur independently and/or successively; that is, whether the investigated person can autonomously challenge the decision on which jurisdiction is better placed and that concerning the transfer of criminal proceedings, or whether, on the other hand, this should be undertaken jointly and simultaneously. If we accept that this challenge can be made separately and/or successively, the main procedural issue that would occur would be the potential substantiating of two different remedies, which could lead to two completely incompatible decisions, as, on the one hand, the agreement on determining the competent jurisdiction could be decreed as final, while, on the other, challenging the transmission of criminal proceedings in favor of the competent State could be upheld, thereby making what was determined in the first judicial resolution completely void of content. If, on the other hand, we were to decide that the challenge should be made simultaneously, this would imply inseparably linking the resolution of both matters, and consequently assessing the suitability of transferring jurisdiction could not be understood without considering the opportunity of the transmission of criminal proceedings, and vice versa. Ultimately, what must be analyzed here is whether the close relationship between both decisions makes it necessary for both to be resolved within the same remedy or

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whether, on the other hand, the possibility for the parties to appeal against both decisions independently should remain. In our opinion, the possibility of appealing against the decisions on both matters independently should prevail, since this solution is more consistent with the division of both areas into different instruments (conflicts of jurisdiction and transfer of proceedings) that we have proposed in this model as the most suitable formula, especially from the point of view of the due respect of procedural rights and safeguards of the investigated or accused person. Notwithstanding, we cannot admit that, as a result of an appeal, upholding the challenge of a judicial resolution on the agreed transfer of criminal proceedings makes it impossible to apply a final decision on the resolution of the conflict, as this would undermine the principle of legal certainty. Therefore, it is necessary to find a balanced procedural formula that complies with the two main objectives—respect for procedural guarantees and legal certainty—that we are striving for with this model. The solution that we propose for this scenario consists of a three-way approach, which will vary depending on the moment at which the agreement on transmission of criminal proceedings is reached. In the prevention and resolution procedure we have proposed, there is also the obligation for national authorities, in the event of an agreement on which of them is better placed to carry out the prosecution, to declare whether the transmission of criminal proceedings is deemed necessary, and, if so, for this to be established. By virtue of this, within the same procedural act, which in Spain would take the form of an order or, in exceptional circumstances, a decree of the Public Prosecutor’s Office,71 should be included both the content of the agreement determining the best placed jurisdiction and the decision on the transfer of criminal proceedings. In this case, the challenge filed by the party on any of the issues must be made simultaneously via the same remedy. Consequently, the court hearing the appeal must rule on both points in the same resolution, bearing in mind that declaring the inadmissibility of either of these—the allocation of jurisdiction and the transfer of criminal proceedings—may produce the effect of overriding the other. On the other hand, if the national authorities share the view that one of these is better placed for prosecuting, but do not consider it necessary to agree on the transfer of criminal proceedings while not accepting this by means of the agreement, then logically the decision will only refer to the decision on determining jurisdiction and the measures, where appropriate, adopted to comply with this pronouncement. As a result, the possible appeal of a party will be limited to this procedural subject matter. If, after the agreement becomes final, the authorities decide on transferring criminal proceedings on the same case, the parties will have the opportunity to challenge this

71

With the problems that currently exist in Spain for the possible challenge of such an act, as it should be remembered that there is no appeal against the decrees of the Public Prosecutor, without prejudice to the fact that, in this case, the parties may show their disagreement with the decision by reproducing their claims before the investigating judge or, where appropriate, before the competent juvenile judge. See in this regard Art. 32(6) of Act 16/2015, cit.

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decision autonomously, and the judge or court should rule on this issue without being bound by a previous accord on determining jurisdiction. Lastly, in the unlikely event that the national authorities agree that one of them is in a better position to investigate or prosecute the case, without having deemed it necessary to carry out a transfer of criminal proceedings by means of this agreement, deciding to postpone this transmission to a later stage but prior to the decision determining jurisdiction becoming final in all Member States, then national authorities must take this into account due to the possible preliminary ruling effect that the first decision—determination of jurisdiction—could have with respect to the second—transfer of proceedings—. Therefore, they should refrain from acting on any appeal by a party regarding the agreed transfer until the decision on determining jurisdiction becomes final.

5.5.2

Supranational Level

In a horizontal prevention and settlement model such as the one proposed, the decision regarding criminal jurisdiction conflict is still the exclusive power of the competent national authorities involved, in which the intervention of external agents or actors (Eurojust) remains limited to a merely consultative, advisory, or mediating role between the “parties” (competent national authorities). For this reason, the requirement for supranational judicial control of this decision is unfounded since the decision-making nucleus is still exclusively represented by the national authorities of the Member States. Therefore, apart from proposing that the CJEU can take a decision on aspects of the interpretation of the proposed regulations that may arise as a result of a preliminary ruling of Art. 267 TFEU, we consider it equitable and in accordance with the purposes of this horizontal model to reserve the possible challenge regarding the merits of the decision to the procedural provisions in the internal legal system of each Member State which, in any event, as we have described in the above section, should ensure the possibility of an effective remedy for all parties.

References Böse M, Meyer F, Schneider A (eds) (2014) Conflicts of jurisdiction in criminal matters in the European Union. Volume II: Rights, principles and model rules. Nomos, Baden-Baden Catelani E (2014) Fonti del Diritto e cooperazione guidizaria penale. In: Catelani E (ed) L'ordinamento giuridico italiano nello “Spazio di libertà, sicurezza e giustizia”. Editoriale Scientifica, Napoli, pp 3–32 García-Valdecasas Dorrego MJ (2019) Cuestión prejudicial ante el Tribunal de Justicia de la UE. Francis Lefebvre, Madrid Gascón Inchausti F (2012) Investigación transfronteriza, obtención de prueba penal en el extranjero y derechos fundamentales. (Reflexiones a la luz de la jurisprudencia española). In: Gómez

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Colomer JL, Barona Vilar S, Calderón Cuadrado P (Coords.) El Derecho Procesal español del siglo XX a golpe de tango: Juan Montero Aroca: Liber Amicorum en homenaje y para celebrar su LXX cumpleaños. Tirant lo Blanch, Valencia, pp 1245–1272 Gascón Inchausti F (2019) La eficacia de las pruebas penales obtenidas en el extranjero al amparo del régimen convencional: apogeo y declive del principio de no indagación. In: González Cano MI (ed) Orden Europea de Investigación y prueba transfronteriza en la Unión Europea. Tirant lo Blanch, Valencia, pp 32–63 Gónzalez Cano MI (2016) El decomiso como instrumento de la cooperación judicial en la Unión Europea y su incorporación al proceso penal español. Tirant lo Blanch, Valencia, p 2016 Ligeti K, Klip A, Vervaele JAE (2017) Draft Legislative Proposals for the prevention and resolution of conflicts of jurisdiction in criminal matters in the European Union, Result of the Project Prevention and settlement of conflicts of exercise of jurisdiction in criminal law. European Law Institute, Vienna Ligeti K, Klip A, Vervaele JAE, Robinson G (2018) Preventing and resolving conflicts of jurisdiction in EU criminal law: a European Law Institute Instrument. Oxford University Press, Oxford Lopes da mota et al (2006) Experiencias en conflictos de jurisdicción. In: Morán Martínez RA, Guajardo Pérez I (eds) Conflictos de jurisdicción y principio ne bis in idem en el ámbito europeo. Catálogo general de publicaciones oficiales, Madrid, pp 17–42 Martínez Gimeno M (2012) Cuestiones procedimentales (I): Disposiciones comunes a todo procedimiento, recursos directos y cuestiones prejudiciales. In: Beneito Pérez JMª (Dir.), Maillo González-Orús J, Becerril Atienza B (Coords.) Tratado de Derecho y Políticas de la Unión Europea TOMO V, Sistema jurisdiccional de la UE. Thomson-Reuters Aranzadi, Cizur Menor, pp 677–780 Ortiz Pradillo JC (2012) Cibercrimen y conflictos de jurisdicción penal: una cuestión por resolver. In: Castillejo Manzanares R (Dir.), Sande Mayo MJ (Coord.) Temas actuales en la persecución de los hechos delictivos. La Ley, Madrid, pp 501–539 Ortiz Pradillo JC (2016) Determinación de la jurisdicción y competencia para la investigación y enjuiciamiento de los daños informáticos. Centro de Estudios Jurídicos del Ministerio de Justicia Palomo Del Arco A (2016) Transmisión de procedimientos y cesión de jurisdicción. In: Juanes Peces A (Dir.), Díez Rodríguez E (Coord.), Cooperación jurídica penal internacional. Francis Lefebvre, Madrid Rodríguez Sol L (2015) La prueba en fase preprocesal: garantías, limitaciones y dificultades en la investigación”. Fiscalía General del Estado, Documentos, Ponencias Formación Continuada, Investigación y prueba en los delitos de corrupción, Madrid Rodríguez Sol L (2016) Investigación y prueba transnacional: la cooperación judicial internacional”. Fiscalía General del Estado, Documentos, Ponencias Formación Continuada, Investigación y prueba en los delitos de corrupción, Madrid Rodríguez-Medel Nieto C (2016) Obtención y admisibilidad en España de la prueba penal transfronteriza. De las comisiones rogatorias a la orden europea de investigación. Thomson Reuters-Aranzadi, Cizur Menor Roma Valdés A (2018) La investigación de la Fiscalía Europea y el derecho de defensa. In: Arangüena Fanego C, De Hoyos Sancho M (Dirs.), Vidal Fernández B (Coord.) Garantías procesales de investigados y acusados: situación actual en el ámbito de la Unión Europea. Tirant lo Blanch, Valencia, pp 575–598 Vidal Fernández B (2010) El derecho a intérprete y a la traducción en los procesos penales en la Unión Europea. La iniciativa de 2010 de Directiva del Parlamento Europeo y del Consejo relativa a la interpretación y traducción. In: Arangüena Fanego C (Dir.) Espacio Europeo de Libertad, Seguridad y Justicia: últimos avances en cooperación judicial penal. Lex Nova, Valladolid, pp 183–222 Zimmerman F (2015) Conflicts of criminal jurisdiction in the European Union. Bergen J Crim Just 3(1):1–21

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Further Reading Böse M, Bröcker M, Schneider A (eds) (2021) Judicial protection in transnational criminal proceedings. Springer, Cham Ryngaert C (2020) Selfless intervention. The exercise of jurisdiction in the common interest. Oxford University Press, Oxford

Chapter 6

De Lege Ferenda Proposals on Settlement of Conflicts of Criminal Jurisdiction: Model B—Vertical Approach

6.1

General Aspects and Explanation

Our second model proposal is based on applying the principle of supranational integration by means of a new approach, whereby, in certain circumstances, an EU agency (Eurojust) may issue a binding decision on a conflict of criminal jurisdiction. The objective of this vertical model is to establish a new procedure for the prevention and settlement of conflicts of jurisdiction, respectful of the principles of proportionality and subsidiarity. In this regard, in the absence of an agreement between the national authorities, Eurojust would resolve the conflict by a decision that is effectively binding and mandatory for all the national authorities involved. Accordingly, the measures that we propose and will subsequently explain are as follows: replacing the current Framework Decision 2009/948/JHA with a new instrument that establishes a procedure for the prevention and resolution of conflicts of jurisdiction, providing for a possible supranational resolution of the conflict; the ex novo creation of a new mechanism for transfer of criminal proceedings between Member States of the European Union; the approval of the necessary amendments to the Eurojust regulation to permit its binding resolution in the conflict; providing appropriate jurisdictional control, necessarily of a supranational nature, which makes it possible to adopt the above measures and guarantees respect for the rights and guarantees of the investigated or accused person.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 A. Hernández López, Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU, Comparative, European and International Criminal Justice 3, https://doi.org/10.1007/978-3-031-15691-5_6

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Action 1: Replacing Framework Decision 2009/948/JHA Legal Basis and Proper EU Legal Instrument

Once again, the first measure to be adopted in this vertical model consists of replacing Framework Decision 2009/948/JHA with a new instrument, adopted in accordance with the new possibilities offered by primary law following the modifications brought in by the Treaty of Lisbon. Among all the secondary law instruments available, we must reiterate our recommendation of a regulation in favor of the directive for the same reasons stated supra in our horizontal model.1 This is, briefly, because of its direct effect and the fact that there is no need for subsequent transposition, features that would make application of the procedure in the different national systems much more homogeneous. Having said this, although we recommend using the same legal instrument, we cannot resort en bloc to the characteristics of the Regulation that we have described in our proposal for the horizontal model. Although some of the solutions mentioned above for that model can and should be reiterated for this proposal for a vertical model—as will be duly pointed out in each of the different Sections—, it is necessary to clarify certain key aspects that are specifically required for a vertical model whose main defining characteristic is that, in certain circumstances, the conflict may be resolved effectively and in a legally binding way by a supranational body.

6.2.2

Subject Matter and Scope

The object and scope of application of this proposed Regulation shall be identical to those advocated in the proposal for the horizontal model. Consequently, its aim would be to establish a new procedure for preventing and resolving conflicts of criminal jurisdiction between EU Member States, and its scope would extend to both actual and abstract conflicts of criminal jurisdiction. Again, the objective scope of application would be limited exclusively to parallel criminal investigations and proceedings, expressly excluding “multiple” proceedings. This would be without prejudice to the subsequent inclusion of the latter, as we proposed in the horizontal model, in the Regulation’s scope of application for transfer of criminal proceedings, an integral part of both models.

1

See Chap. 5.

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Procedure

Regarding the formal aspect of the prevention and resolution procedure, we consider that the structure comprising three successive and progressive phases should be maintained: a first phase in which the national authorities will establish direct contacts and exchange useful information on the circumstances of the case, in order to detect the existence or otherwise of the conflict (detection phase); a second phase of direct consultations between the national authorities involved on how to proceed in the event of a possible conflict, with the possible assistance of the EJN and Eurojust (decision phase); a third and final phase in which the possibility exists of requesting the intervention of a supranational body—in our proposal, Eurojust— to intercede in the resolution of the conflict and give a binding decision. However, the scope of the different phases and the transition between these should be different from what is currently in force and what we have proposed in the horizontal model. To recapitulate, the main novelty of our proposed vertical model with respect to the previously described horizontal model is the fact that Eurojust’s intervention in the conflict is no longer to be constrained to its current function of advising and/or mediating between positions adopted by the national authorities; rather, when the matter is forwarded and submitted for examination by Eurojust—we will see later the cases in which this referral will occur—, the Agency will have the power to issue a binding decision regarding the nature of the resolution to be adopted by the judicial authorities involved. In other words, the opinion of Eurojust on the resolution of the conflict, which will imply determining which jurisdiction is better placed to carry out the investigation or prosecution of the specific case, will no longer take the form of an opinion or proposal, Instead, the resolution—we will see later of what type2— should be considered effectively binding, and its enforcement by the national authorities involved will be mandatory. Consequently, once the assistance of Eurojust has been requested—the third phase in the procedure—, the national authorities will lose, de facto, control of the final decision of the conflict. This control will be therefore transferred to a supranational agency of the AFSJ created under the umbrella of European Union Law. Thus, the first two phases—information exchange and consultations—do not pose major problems and may well remain unchanged with respect to the terms already expressed in our horizontal model proposal. This includes those related to the standing of the investigated or accused person to indirectly initiate this procedure. If, as a result of this period of information and consultation, the national authorities are able to reach an agreement, the latter will be binding on all of these. This should then prevail and be applied directly, without the need for further intervention and/or ratification by third parties (Eurojust), and without it being necessary to pass to the third phase of the procedure. Subsequently, a significant characteristic of our proposal for a vertical model is the fact that the national authorities will continue to have a predominant role in resolving the conflict. In 2

See infra Sect. 6.4.3.

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this regard, if they manage to reach an agreement by themselves, it will not be necessary to resort to the third phase of the procedure, that is, to supranational intervention for a resolution of the conflict. Determining the most suitable jurisdiction will continue to be an issue that will in most cases be settled through direct horizontal relationships between national authorities, with the vertical resolution of the conflictive situation being an ultima ratio mechanism which should only be resorted to when everything else has been ineffective, and the aim of which is simply to avoid possible loopholes that allow the conflict to remain unresolved. Having said this, it is unavoidable to carefully reflect on how and in what cases this third phase of the procedure can or should become operable in order that Eurojust examines and resolves the question. Specifically, three key questions should be previously determined: who are empowered to initiate examination (competence and locus standi); in which phase or phases of the prevention and resolution procedure and of the respective procedural phases of national criminal proceedings (stage of proceedings and momentum); whether resorting to the third phase of the procedure will always be an optional capacity of the national authorities or whether, alternatively, it may become a compulsory referral if certain circumstances concur (referral duty conditions).

6.2.3.1

Competence and Locus Standi

Regarding the competence and standing to request actuation of this third phase, two alternative solutions may be proposed: either that the national authorities alone should have the competence to raise the issue before Eurojust, which would mean maintaining a system comparable to the one currently in force; or that Eurojust should also possess the power to autonomously request the competent authorities to initiate this third phase and, therefore, intervene in the prevention and settlement of the conflict. Of the two possibilities mentioned, we initially ruled out the possibility of Eurojust requesting the referral of the matter ex officio and in a binding context, as we understood that conferring such power on Eurojust would not respect the principles of proportionality and subsidiarity3 which should be the inspiration behind all EU regulations in this area. We consider that this empowerment would not respect either of the two principles since, on the one hand, the ex officio intervention of Eurojust would constitute excessive interference in the jurisdictional power of the national authorities, by depriving them of the opportunity to resolve the issue on their own terms, by their own means and according to their own criteria. This reasoning may also be substantiated by the fact that the national authorities involved know all the circumstances of the case directly and immediately. In

3

Art. 5(3) and (4) TEU, as interpreted by Protocol No 2 on the application of the principles of subsidiarity and proportionality (OJ C 115, 9 May 2008). On this issue, see Kettunen (2020), pp. 169–173.

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addition, it could have the effect, in our view undesired, of requiring the national authorities to provide a speedy resolution of the issue. Similarly, it could undermine their autonomy in order not to lose control, forcing them to reach a “fictitious” consensus on the issue with the sole purpose of preventing Eurojust from assuming the competence to resolve the conflict. Although this could be seen as an effective way of avoiding prolongation of the conflict of jurisdiction, we believe that it would constitute an indirect violation of their independence and of reaching an agreement in the interests of proper administration of justice. These conclusions are in harmony with the way in which Eurojust traditionally carried out its functions, since, in accordance with the provisions of the previous Eurojust Decision, it was necessary for there to be a prior request for assistance by a national authority in order for it to perform such functions fully with regard to a specific issue.4 However, we have to admit that our initial claims are weakened following the study of the new system by which the Agency carries out its functions with the implementation of the new Regulation (EU) 2018/1727. Under the new rules, the Agency may undertake its tasks both at the request of the competent authorities of the Member States and also on its own initiative,5 which opens the door to Eurojust’s ex officio intervention to exert some of its powers. Assuming that this new regulation has been accepted by all the Member States on the grounds that it shows sufficient respect for the principles of proportionality and subsidiarity,6 we believe it makes no sense to try to impose greater respect for these principles than that which has already been accepted by the Member States themselves. Therefore, while academically speaking we maintain our previous claims, we must reconsider our initial position in practical terms, and finally conclude that Eurojust’s ex officio intervention in the resolution of the conflict should not be completely discarded, but rather should be performed coherently for it to be accepted by the Member States and meet the objectives of our model. We therefore consider that such ex officio intervention should, in the spirit of the principle of subsidiarity, be permitted only when the national authorities are unable to reach an agreement themselves and have not expressly requested that the matter be resolved by Eurojust. However, in order for the Agency to be apprised of this circumstance, it is necessary to previously establish that Eurojust be informed. This obligation should be met by all the national authorities that initiate a conflict prevention and settlement procedure according to what has been set forth in this Regulation proposal.7 Therefore, this prior information requisite will give Eurojust the opportunity to monitor the matter from the outset, allowing it to infer, after 4

See Art. 13(2) Decision 2002/187/JHA (consolidated version), cit. See Art. 2(3) in conjunction with recital 12 Regulation (EU) 2018/1727 on the European Union Agency for Criminal Judicial Cooperation (Eurojust) and replacing and repealing Council Decision 2002/187/JHA (OJ L 295 of 21 November 2018). 6 As stated in recital 70 of Regulation (EU) 2018/1727, cit. 7 This information obligation is not provided for in the current Framework Decision 2009/948/JHA but exists, in a generic way, in Regulation (EU) 2018/1727, cit. (see Art. 21(6)(a)), although in practice it is not always duly complied with by national authorities. 5

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certain time limits that we will specify later, that the conflictive case has not been resolved by the national authorities themselves and, as a result, that the ex officio intervention of the Agency is required. On the understanding, then, that the national authorities involved in the conflict will be entitled to bring the matter to the attention of Eurojust, and that the latter may also have a subsidiary role regarding intervention on its own initiative, it is worth considering whether, in the event of a referral, this should be admitted only at the request of any of the national authorities involved or whether the parties involved in the proceedings, e.g the investigated or accused person or the victim, can also request, either directly or indirectly, this referral to Eurojust. On this issue, we believe that the parties should be able to do this request. However, this referral should not be performed directly, but only by means of a claim made to the competent national authorities in accordance with the rules established in their internal procedural law. For a better understanding of the practical implications of this solution, what we propose here is the advisability of adopting a mutatis mutandis system to the one already in force with regard to raising preliminary ruling requests before the CJEU.8 In this regard, the parties cannot refer the question directly to the Luxembourg Court, but they can propose its consideration by the national judicial authority, which will have the final word on whether or not the question shall be referred, including its wording and its content.9 In any case, no matter the formula used in accordance with the national procedural law of each Member State, it is imperative that the proposed Regulation ensure that the parties have a hearing prior to the decision to refer the matter to Eurojust. This is because in our model parties will not be able to directly address Eurojust once the matter has been referred to it for its decision.10

8

Art. 267 TFEU. The Court of Justice of the European Union has recently published a series of recommendations applicable to preliminary ruling procedures, see Recommendations to national courts and tribunals concerning references for preliminary rulings (OJ C 257 of 20 July 2018). 9 Cf. CJEU Cartesio, C-210/06, of 16 December 2008, EU:C:2008:723, paragraph 96. On its procedural articulation in Spain, see Art. 4 bis LOPJ, added by LO 7/2015, of 21 July, which amends Organic Law 6/1985, of 1 July, on the Judiciary (OJ n. 174 of 22 July 2015); see Instruction 1/2016 of the State Prosecutor General’s Office of 7 January 2016, on the intervention of the prosecutor in preliminary rulings. For a specific analysis of this issue, see Torres Soca (2016). However, cf. the recent STC 37/2019, of 26 March 2019, ES:TC:2019:37, FJ 6°, in which the Spanish Constitutional Court annulled a judgment for infringement of due process on the grounds that the court a quo (Supreme Court), being the final instance, should have asked the CJEU for a preliminary ruling in the specific case in question. 10 For a different perspective, see Ligeti et al. (2017, 2018), p. 64, whose proposal for a vertical instrument (Art. 13.3) does allow the investigated or accused person and the victim to address written submissions directly to Eurojust.

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149

Stage of Proceedings and Momentum

It is of particular interest to determine whether the referral to Eurojust can occur at any time during the prevention and resolution procedure, e.g. throughout the information exchange period, or whether it will only take place once the first two phases of the procedure (exchange of information and direct consultation procedure) have been successively concluded and completed. Initially, it must be assumed that although the first two phases of information exchange and direct consultations that comprise the current procedure for preventing and resolving conflicts of jurisdiction, and which we have decided to maintain in our proposed Regulation, are formally differentiated in the instrument, in practice they can—and on certain occasions should—take place simultaneously. Let us imagine a coordination meeting hold at Eurojust headquarters between national authorities of different Member States to discuss difficulties in the execution of an EAW. Following the different investigations (exchange of information), the risk of a conflict of criminal jurisdiction is detected for the first time in this meeting, and subsequently the ideal solution is agreed on in order to avoid it (a decision on the conflict). These kind of situations are not laboratory examples, but ones which, in fact, frequently occur in practice. For this reason, once the request for information exchange between authorities has been sent, delimiting this phase and the direct consultation and decision phases is not easy in certain cases, and this uncertainty continues throughout the entire prevention and settlement procedure. On the other hand, the end of the information exchange and consultation phases is clearly determined, perhaps not in the procedure currently in force, but in the one we have proposed in our horizontal model, and which we are going to repeat for our vertical model. Unlike what occurs with current legal framework, our proposals include the obligation on the part of the national authorities to issue an appropriate judicial resolution in writing, in which they must record the result of the procedure and the decision taken to resolve the conflict. Thus, the end of the exchange and consultation procedure will be perfectly determined and dependent on the final judicial resolution issued, in accordance with national law, in each of the jurisdictions affected by the conflict. In view of this clarification concerning the possible overlap of the different phases of the procedure, we consider that the ideal moment for Eurojust to examine the matter is the period immediately after the end of the first two phases (information exchange and direct consultation). This is when the existence of the conflict has been determined, the legal positions of each national authority regarding its possible resolution have been revealed and, in short, all the relevant data and circumstances are available for a reasoned, equitable and rational decision to be adopted. Therefore, we believe that, in order for Eurojust’s subsidiary decision on the conflict to be feasible, the national authorities should be obliged to previously make full use of the information exchange and consultation phases that characterize the conflict prevention and settlement procedure (the horizontal resolution channel). Only in the event of their failing to reach an agreement on their own can they go on to the third phase

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of the procedure, referring the matter to Eurojust or, secondarily, can the Agency intervene on its own initiative (the vertical resolution channel). Regarding the procedural moment at national level, we consider that the referral of the matter to Eurojust may be authorized at any time prior to the termination of the oral trial phase or its European equivalent, in the same way that the prevention and resolution procedure would be initiated. This referral should, at all events, take place prior to the national authorities issuing any resolution that may prevent, condition or limit Eurojust’s ability to act on the conflict, such as filing of the proceedings or full dismissal of the case.

6.2.3.3

Referral Duty

Finally, it is necessary to establish whether, in certain circumstances, the referral of the case constitutes an obligation for the national authorities involved, or whether it should remain an option. If we consider that referral should be mandatory in certain situations, then the nature of such situations should be specified. Some examples of hypothetical cases that would justify the need to refer the matter to Eurojust might be the scope or dimension of the conflict at EU level, the existence of previous refusals or repeated difficulties in requesting cooperation between the national authorities involved, or a clear inability to reach an agreement to resolve the issue. All the above examples currently represent assumptions on which information should be given to the national members of Eurojust in accordance with its Regulation.11 On the other hand, if we assume that referral should in any event continue to be optional, national authorities will not be required to resort to this third phase under any circumstances; consequently, this stage will be entirely elective. On this issue, we must completely reject the possibility of including in the proposed Regulation any kind of material criteria obliging the national authority to refer the dispute to Eurojust (e.g. the mere dimension or scope of the conflict), since such scenarios might, once again, be incompatible with respect for the principle of subsidiarity. Despite the fact that, according to European case law on this principle, the European scope or extent of the conflict might be considered a rational reason for believing that the objective could be better achieved at Union level,12 it is also true that the scale of the conflict in quantitative terms may have no impact whatsoever on the capacity of the national authorities to make their own decision on the matter without having to resort to the mandatory intervention of Eurojust. 11

See Arts. 21(5)(c); 21(6)(a) and c) Regulation (EU) 2018/1727, cit. Cf. CJEU Philip Morris Brands and Others, C-547/14, 4 May 2016, EU:C:2016:325, paragraph 215: The principle of subsidiarity is set out in Article 5(3) TEU and, by virtue of that principle, in areas which do not fall within its exclusive competence, the Union shall take action only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Union. 12

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In other words, the key to legitimizing the binding intervention of Eurojust in a conflict of jurisdiction should never be determined by the dimension or complexity of the specific case in abstracto, but rather by the manifest incapacity of the national authorities involved to reach a consensus that satisfies all parties or complexity in concreto. For instance, it should not be paradoxical that in a conflict of jurisdiction involving five different Member States, the assistance of Eurojust may not be necessary for the national authorities to agree on who should exercise criminal jurisdiction. Meanwhile, in another strictly bilateral and, therefore, apparently less complex case, this intervention of Eurojust may be absolutely necessary, because the national authorities cannot reach an agreement on their own—as occurred in the Prestige case cited extensively throughout this study—. Therefore, we believe that including purely material, quantitative or qualitative criteria cannot be accepted as grounds for legitimizing Eurojust’s mandatory intervention in the resolution of the conflict. On the other hand, and in line with what we have maintained above, we do believe it feasible to propose that examination by Eurojust should take place if the parties to the conflict—in this context the parties are strictly the national authorities involved—, are unable, despite having engaged in direct consultations and having full capacity and autonomy to decide on the most appropriate way to resolve the conflict, to reach an agreement on their own regarding the solution to adopt. Or, in other words, and using the same terms as before, when there is a clear inability to reach an agreement. This solution would also contribute to ending the current unfortunate and in our opinion inadmissible situation, which on paper allows the conflict to continue despite having been duly detected. With this new system, there would be the guarantee that, once the conflict is detected, it will always be resolved: either by the agreement of the national authorities (best scenario) or by compliance with a supranational decision integrating this hypothetical lack of agreement. The preceding measure should be considered fully compatible with the principle of subsidiarity, given that Eurojust would only intervene to assess and resolve the matter in the absence of a solution reached by the national authorities. That is, when the objective (resolving the conflict) cannot be adequately met by the Member States (the competent national authorities), and can therefore be better achieved, on account of its scale, at Union level (by means of a binding decision of Eurojust as an EU agency13). However, this measure may raise doubts from the point of view of due respect for the principle of proportionality. The necessity of resorting to Eurojust’s examining of the conflict in the absence of agreement by the national authorities involved would once again be an indirect way of compelling the latter to reach a consensual solution so as not to lose the control of decision-making regarding the conflict and be forced to abide by the decision of a supranational body. This interference might not be

13

Application of the principle of subsidiarity which we consider to be fully justified and compatible with the wording of Art. 5(3) TEU and the rules set out in Protocol No 2 on the application of the principles of subsidiarity and proportionality and the related case law of the CJEU.

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proportional, if we consider that, while the national authorities referred to in our model are always considered to be judicial authorities, and the decisions they adopt are important and of a legal nature, currently Eurojust, despite benefiting from national judicial authorities assigned to the Agency (national members and deputies), can under no circumstances be considered a judicial authority or a hierarchically superior body with respect to any national judicial authority. Therefore, for a European agency with an objective scope and limited powers such as those currently possessed by Eurojust—that is, fundamentally to support judicial cooperation in criminal matters between national authorities—to be able to assess and determine motu proprio a purely jurisdictional matter—such as deciding on the competent jurisdiction—, is a notion which shows little compatibility with the principle of proportionality, and it may even compromise the legitimacy of the Agency to resolve these cases.14 However, it should once again not be forgotten that the new Eurojust Regulation seems to permit intervention on the Agency’s own initiative in this and other matters15 albeit of a non-binding nature. Consequently, these academic conclusions should be tempered again by what in practice has already been assumed, at least on paper, by the Member States. In short, it seems a priori that only by means of a free and voluntary referral of the matter by the national authorities involved—that is, an express request for Eurojust’s assistance—could the requirements of this principle be fulfilled. If, however, we were to maintain that referral should be free and voluntary in all cases, we would simultaneously assume that we are justifying continuing with the current statu quo, which we believe goes against the principle of legal certainty and the rights and safeguards of the investigated and accused person. We would also be rendering ineffective the proposed vertical model from the very outset, because, in order for it to fulfill its function, it should at least be able to remedy the deficiencies that currently arise when the national authorities are unable to achieve an agreement by themselves. This function will be barely operational in practice if referral depends solely and exclusively on the will of these authorities. For this reason, we should consider new arguments which guarantee that the principles of proportionality and subsidiarity are not violated, but which at the same time justify mandatory referral of the case to Eurojust in the absence of an agreement between the national authorities.

14

The classic proportionality test, the origins of which are to be found in German case law and which has been adopted by both the ECtHR and the CJEU, bases the control of the proportionality of a measure or act on compliance with three requirements: appropriateness, necessity and proportionality in the strict sense. These requirements have been repeatedly required and interpreted by the case law of the CJEU, stating in essence that the principle of proportionality requires that the means applied by a provision of EU law must be suitable for attaining the legitimate objective proposed by the legislation in question and must not go beyond what is necessary to attain it (Cf. CJEU al-Aqsa v Council and Pays-Bas/Al-aqsa, C-539/10 P and C-550/10 P, 15 November 2012, EU:C:2012:711). On the principle of proportionality and its relationship with the principle of mutual recognition and the protection of fundamental rights, see Mitsilegas (2016), pp. 142–146. 15 See Art. 2(3) Regulation (EU) 2018/1727, cit.

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In this regard, the first justification for rejecting a breach of the principle of proportionality is concerned with weighing up the interests at stake. If this measure is applied—namely, mandatory referral of the case in certain cases—, we believe that the burden that the Member States must bear, mainly to accept that their authorities are bound by the decision taken on jurisdiction by an EU body, is proportionate to the intended objective. This simply is to effectively resolve the conflict of criminal jurisdiction and avoid the innumerable adverse effects deriving from it, which we have extensively described throughout this book. On the one hand, there is the violation or impairment of the rights of the investigated and/or accused person, who, should the conflict persist, will see how their situation in the proceedings is disproportionately weakened. On the other, is the need to respect the principle of legal certainty, and to avoid the negative consequences that would stem from the persistence of the conflict, including but not limited to automatically applying the consequences of the ne bis in idem principle in other investigations and criminal proceedings in progress. We also understand that any allusion to the possible breach of the principle of subsidiarity, as the Agency can deal with the case without a prior express referral from the national authorities, together with Eurojust’s current lack of legitimation to resolve a purely jurisdictional matter, could be redressed by establishing an effective judicial control by the CJEU regarding the decision adopted. This control would guarantee that the binding decision of an EU agency would always be subject to an examination of its legality, providing this is done by a Union institution with jurisdictional powers. How and in what terms this supranational judicial review should be carried out will be the object of a specific study in the corresponding Section of this Chapter.16 In light of these considerations, we have to conclude that a mandatory referral of the case to Eurojust in the absence of an agreement is both plausible and in accordance with the due respect for the principles of proportionality and subsidiarity. Therefore, this should be established as the best formula for the vertical model proposed here. This in turn would lead us to reflect on whether for the case to be validly referred to Eurojust it is sufficient for it to be transmitted by any of the national authorities involved or whether, on the contrary, there must be the explicit consent of all of them in order for them to be understood to be subject to Eurojust’s binding opinion. Maintaining this second position would lead us to adopt an approach that is too naive, since it is more than likely that those who could not agree to resolve a conflict of jurisdiction by their own means, would not agree either on the need to refer the case to a supranational body. We therefore consider that for the prevention and resolution procedure to be effective, it is necessary to maintain the current model on this point, in which it is sufficient for a national authority involved in the conflict to request Eurojust’s assistance for it to be considered validly entitled to decide on the case. This broad interpretation could be supplemented by the need for the national

16

See infra Sect. 6.5 in this Chapter.

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authority requesting assistance to provide full information on the unsuccessful consultation procedure and the reasons for calling on Eurojust’s support.

6.2.4

Deadlines

Respect for the principle of legal certainty once again calls for setting time limits for each of the different phases of the procedure. Establishing deadlines in this vertical model is also essential for Eurojust’s competence in this area to be appropriately determined, including the cases in which its possible ex officio intervention would be justified. As a result, we must maintain the same proposal set forth in the horizontal model. Accordingly, the national authorities are to have, in the absence of an acceptable period proposed by the transmitting authority, a maximum period of 15 days to respond to a request for information—5 days for urgent matters—, with the possibility of an extension limited to another 30 days—15 days in urgent cases—. However, the consequences of failing to meet that deadline should now be slightly different. While in the horizontal model proposal, failure to comply with the deadline would only result in disciplinary effects envisaged in national legislation, despite the obligation to reply still remaining, in this vertical model a more far-reaching consequence should be established: the possible need to refer the matter to Eurojust due to non-observance of deadlines by the national authorities. We believe that the absence of a response from the requested authority can be understood as a tacit refusal to cooperate in resolving the conflict. In this situation, it is not unreasonable to view this situation as essentially comparable to a lack of agreement on resolving the conflict. Therefore, according to the model we propose, the contacting national authority which has not received a reply would have the obligation to refer the matter to Eurojust for resolution. However, we believe that this obligation to refer the matter to Eurojust when deadlines are not met should be attenuated and nuanced, mainly for two reasons. Firstly, because not all non-compliance with deadlines is due to a refusal to cooperate; rather, it may be due of an excessive workload of the requested national authority, or the result of a formal defect in the referral of the matter to the competent authority that has not been amended via the appropriate channels, e.g. referral to an authority which is not competent to decide on the case or formal deficiencies in the initial request which prevent it from being processed. Secondly, because common sense and forensic practice warn us that some matters are much more complex than others, requiring a further study and/or more expensive procedures in terms of times and resources, in which it is naturally more difficult to deal with a request for judicial cooperation in a timely manner. Hence, should an authority of a Member State fail to respect deadlines, it would not be appropriate to propose a mechanism as rigid as the automatic referral of the case to Eurojust. Rather, we should establish a more flexible mechanism that allows to correctly discriminate between cases in which failing to reply is due to the national

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authority’s refusing or not being interested to cooperate, and others in which there have simply been additional difficulties preventing the contacted national authority from providing a response to the request in a timely manner. In compliance with this, we propose the following formula as a possible intermediate solution: after the first 15 days—5 days in the case of urgent matters— without a response from the contacted national authority, the contacting national authority should reiterate its request, accompanied by an informative copy to Eurojust. The current basis here is Art. 21(6) in relation to Art. 4(2)(b) of Regulation (EU) 2018/1727, whereby the latter may use its powers to request the contacted national authority to comply. If, once the request has been repeated, the contacted national authority issues its reply before the end of the 30-day extension period, the procedure will continue via its normal channels. If, however, despite this repetition, the authority does not comply with the request, but does respond by justifying the reasons for the non-observance of the deadlines, it will be granted a new extension of 30 days to comply with the request for information or to substantiate its opposition to it. On the other hand, should the request for information be repeated but the requested authority maintains its silence, the requesting authority will transform its initial communication to Eurojust into a request for assistance, pursuant to Art. 21(3) in relation to Art. 4(2)(b), (4) and (5) of Regulation (EU) 2018/1727. Alternatively, Eurojust may also act on its own initiative, as provided for in Art. 2(3) of the Regulation. The Agency will be able to exercise the powers acknowledged according to our model, including but not limited to the binding decision on the conflict.17

6.2.5

Procedural Effects in National Criminal Proceedings

In order that the effectiveness of the prevention and settlement procedure is not compromised, the national authorities should refrain from acting and/or issuing any decision-making pronouncement that may have a special impact on the case for the entire duration of the procedure. We specifically recommended in our horizontal model proposal the use of a dual system, which combines the general recommendation of suspending the procedure (optional requirement), with a specific prohibiting of any decision to be issued with the force of res judicata, in particular, a final judgment (mandatory requirement). This same system may be maintained in this vertical model for the phase in which the resolution of the conflict remains in control of the national authorities. However, it should be extended for other cases involving the prescriptive intervention in the

17

We understand that for Eurojust to be entitled to issue a binding decision on the conflict in this case, it must first make use of its powers to denounce repeated difficulties relating to the execution of a request for assistance (Article 4(5) of Regulation (EU) 2018/1727, cit.), thus trying to force a response from the national authority that has repeatedly failed to reply.

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conflict of Eurojust. In these cases, the previous general rule would be slightly modified, in that the general recommendation to suspend the respective national proceedings would be transformed in an obligation for the national authorities, and it would continue at least up to the moment Eurojust issued and gave notification of its decision on the matter. The special rule prohibiting the issuance of any decision with the force of material res judicata in the respective national proceedings would remain unchanged, and it would be extended throughout the entire duration of the settlement procedure.

6.2.6

Connecting Factors

After the detailed analysis of the different available alternatives made supra in the horizontal model to which we must refer,18 we concluded that the most appropriate option for addressing this issue was to set down, by means of the proposed Regulation, a list of connecting factors establishing no type of hierarchical order between them. In line with this solution, we presented two different regulating alternatives: drawing up a list of criteria and factors to be included as an article or annex to the proposed Regulation on the prevention and settlement of conflicts of criminal jurisdiction. The reference here are the most recent guidelines published by Eurojust, and we considered this alternative to be the most suitable for the shaping of our horizontal model. As a second alternative, we proposed to use a single article of the proposed Regulation for the prevention and settlement of conflicts of jurisdiction, referring en bloc to the most recent guidelines published by the Agency in this area. This second alternative (incorporation by reference) is the one we deem the most appropriate for this vertical model proposal. We deem this the best solution for a vertical approach because its characteristics are, in our opinion, very advantageous regarding the objectives of this model: an incorporation by reference clause is consistent with the supranational spirit of the vertical model, since the factors that will serve as decision-making guidelines on the conflict will depend on the criteria of Eurojust at all times; this will apply even when the case is not referred to the Agency and it is the national authorities themselves which resolve the issue. In addition, it encourages a homogeneous application of the criteria throughout the procedure, as both the national authorities and Eurojust will be compelled to exclusively apply the same factors to resolve the conflict, whilst excluding their own criteria established at national level; this would help to strengthen the principle of legal certainty. Finally, this is an extraordinarily flexible mechanism, since it would allow for the inclusion or exclusion of connecting factors without the need to resort to a reform of the Regulation in each case; this implies a much more agile, practical and well-fitting adaptation to the new requirements of judicial cooperation which arise.

18

See supra Chap. 5.

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In line with these advantages, we propose that the connecting factors be established in this vertical model by an article in the proposed Regulation on the procedure for preventing and resolving conflicts of jurisdiction in criminal matters, using an incorporation by reference clause to the non-hierarchical connecting factors published by Eurojust. Currently, these factors would be those published in its practical guidelines revised in 2016. These have been previously indicated in this study, and their scope and significance will be as follows: (1) Principle of territoriality: as a preliminary criterion, the competent jurisdiction will be the one in which most of the crime or its result has occurred, both quantitatively and qualitatively. (2) Location of the investigated or accused person, including the place where the latter was found: their nationality or their habitual place of residence, family or personal roots, or another especially significant link with the place and/or the possibility of transmitting proceedings to the jurisdiction where the investigated or accused person is. (3) Availability and admissibility of evidence and sources of evidence: considering the jurisdiction in which most of these are found to possess more facilities for carrying out the investigation or criminal proceedings in optimal conditions.19 (4) Obtaining testimony from witnesses, experts and victims: this takes into account their availability as regards travelling to another jurisdiction, and the possibility of their testimony being taken either in writing or electronically via videoconferencing or similar systems. (5) The possibilities of witness protection: in particular, if the jurisdiction offers a specific protection program. (6) Interest of the victim, in accordance with the provisions of Directive 2012/29 / EU: this includes the possibility that victims may request compensation. (7) Procedural phase: the more advanced an investigation or a procedure is, the less rational will be its transfer to another jurisdiction. (8) Duration of the proceedings: although this not a determining factor, it will allow the judicial authorities to assess the time it will take to conclude the proceedings in each jurisdiction. (9) Legal requirements: weighing up the legal effects that choosing a competent jurisdiction may cause to the detriment of another; yet these should not serve as a pretext for avoiding compliance with legal obligations which are applicable in one jurisdiction but not in others ( forum shopping).

19

However, the entry into force of the European Investigation Order certainly mitigates the importance of this criterion, provided that the EIO proves to be a truly effective instrument for the transmission of evidence. In this respect, the Eurojust guidelines already indicate the possible impact of this mutual recognition instrument on the weighting of this factor. On the European Investigation Order, see Kostoris (2018), pp. 321–336; Arangüena Fanego (2017), pp. 905–939; Bachmaier Winter (2015), pp. 103–115; Rodríguez-Medel Nieto (2016); Daniele (2015), pp. 179–194.

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(10) Capacity to sentence: impossibility to automatically opt for the jurisdiction that provides potentially higher penalties for the criminal acts investigated / prosecuted. (11) Obtaining the effects of crime: taking into account the capacity to recover, seize and confiscate the instruments and proceeds of crime, the final decision not being based on determining the competent jurisdiction solely on this factor. (12) Costs and resources available in each jurisdiction: this cannot be a determining factor regarding the choice, only being applicable if all other factors are balanced. (13) Member States’ priorities: judicial authorities should not refuse to accept a case for prosecution in their jurisdiction because it is not considered a priority in that particular Member State.

6.3 6.3.1

Action 2: New Instrument on Transfer of Criminal Proceedings Rationale, Legal Basis and Scope

We have severely criticized the lack of legal cover at EU level to allow the transfer of criminal proceedings between Member States, considering the adoption of this measure as a necessary complement to the proposal of comprehensive model of prevention and resolution of conflicts of jurisdiction. At the same time, we have defended the autonomous regulation of the transmission of criminal proceedings in terms of the proposed Regulation of the procedure to prevent and resolve conflicts of criminal jurisdiction, suggesting the adoption of a separate instrument to address this issue. In fact, we have suggested that the scope of this eventual Regulation on the transfer of criminal proceedings should go beyond the problem of criminal jurisdiction conflicts stricto sensu, to also cover other related but not equivalent situations, such as multiple proceedings. To design, therefore, this vertical model, we reiterate the need to adopt, concurrently to the proposed Regulation on the prevention and resolution of conflicts of jurisdiction, a new Regulation on the transfer of criminal proceedings between Member States. The main features of this regulation, such as its legal basis, the appropriate instrument or its scope of application, would be identical to those already proposed for our horizontal model. Consequently, with this reference it makes no sense to reiterate an analysis of these issues in this Chapter.20 In spite of this, some of the features of the proposed Regulation on the transfer of criminal proceedings should be adapted for this vertical model, as we are going to detail in the following Sections.

20

See supra Chap. 5.

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Conditions for Requesting a Transfer

In addition to the conditions already proposed in the horizontal model for requesting a transfer, there should be a decision by Eurojust recommending the use of this channel to the national authorities of the Member States as another reason for transferring criminal proceedings. Logically, we are referring here to Eurojust’s binding decision on the conflict that we propose for our vertical model, but a general reference to this could also substantiate the transmission of criminal proceedings in any situation where a national member makes a justified request to a national authority, in accordance with the powers currently granted by Art. 4(2)(a) and (b) of the Eurojust Regulation.

6.3.3

Grounds for Refusal

In addition to the grounds for refusal already described in the horizontal model proposal, a new reason for mandatory refusal should be established in this vertical model. This would entail expressly prohibiting the request for a transfer of criminal proceedings when the case related to these proceedings has been referred to Eurojust for resolution. This prohibition is to continue until the Agency issues a decision on the matter. The main objective of this prohibition is to prevent Eurojust from finding its decision-making capacity limited once the case has been submitted to examination. At the same time, it would avoid the potential issuing of contradictory solutions regarding the same conflict, e.g. the request for transfer of proceedings being made from the jurisdiction of State A to State B, while the binding decision of Eurojust is that the transfer must be from B to A. Ultimately, justification for this measure is based on the premise that the national authorities, once having referred the matter to Eurojust for decision, have temporary lost control of the solution to be adopted and must abide by that proposed by the Agency.

6.4 6.4.1

The Role of Eurojust Eurojust’s Binding Decision: Rationale and Legal Basis

Unlike what occurs both in the model currently in force in the Union and in our proposal for a horizontal model, where we argue that the generic wording of Art. 82(1)(b) TFEU can be considered sufficient legal basis for acknowledging all the non-binding powers conferred on Eurojust for preventing and resolving conflicts of criminal jurisdiction, any proposal to adopt a model of vertical conflict resolution

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that recognizes Eurojust’s decision-making and binding powers in this matter implies the need for an initial analysis of primary law to determine whether the current text of the Treaties would permit these powers. From this perspective, we should begin our analysis of the legal basis by rejecting, a limine, that Art. 82(1)(b) can justify the defense of a new binding role for Eurojust in resolving the conflict. The formulation of this precept is clearly insufficient, since it is limited to legitimizing regulatory provisions of the Member States, without considering any explicit reference to the possible work of the Agency in resolving the conflict. Having said this, we should seek a new provision in primary law that will serve as a legal basis and allow us to legitimize Eurojust’s binding intervention in the conflict. We consider that this legal basis can be found in Art. 85 TFEU, a precept focusing exclusively on recognizing Eurojust’s present and future role with respect to certain issues. Art. 85 TFEU begins by announcing that the role of the Agency within the AFSJ is to support and strengthen judicial cooperation in criminal matters between national authorities,21 a facilitating role that is fully identified with its current task. In addition, however,—and this is the part that interests us in terms of our analysis—, it foresees the possibility of Eurojust’s powers being extended by the approval of regulations. These possible functions include: (a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;22 (b) Coordinating the investigations and procedures mentioned above;23 (c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.24 Of the above cases, an analysis of the third one is of relevance in light of the object of this study, since it specifically allows for the resolution of conflicts of criminal jurisdiction to be included within Eurojust’s powers. However, the wording of the provision is deliberately ambiguous, because although it undoubtedly establishes the possibility of Eurojust participating in some way in resolving the dispute, it does not clarify whether this participation should be limited to its current role, namely, close to that of a mediator between the standpoints of the conflicting authorities, or whether it refers to a much more active and/or decisive participation, including the obligation on the part of the national authorities to comply with its resolutions. Therefore, given this lack of specificity by primary law, we must try to infer the intention of the European legislator when drafting this section. In our opinion, it is clear that, with the ambiguous wording of Art. 85(1)(c), the latter wanted to allow for Eurojust’s future capacity to issue a mandatory resolution

21

Art. 85(1) TFEU. Art. 85(1)(a) TFEU. 23 Art. 85(1)(b) TFEU. 24 Art. 85(1)(c) TFEU. 22

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on conflicts of criminal jurisdiction between EU Member States. In this regard, there was the deliberate use of a formula that was sufficiently imprecise so as not to be rejected outright by those Member States which were the most reluctant to give up sovereignty in this area. At the same time, however, it allowed for future progress, as national standpoints moved towards greater integration in procedural and criminal matters, without the prior need of a wholesale amendment of the Treaties. The main arguments supporting our interpretation of the European legislator’s intention when drafting this precept relate to the following deductions: From a legal-systematic point of view, if we analyze the other two competencies which, as established in sections (a) and (b) of Art. 85(1) TFEU25—initiating criminal investigation proceedings and proposing the commencement of criminal proceedings by the national authorities—, could be assumed by the Agency, we can observe that these are operational powers that the latter did not possess when the Lisbon Treaty was ratified. Consequently, it is not reasonable to think that, from a legal-systematic point of view, in its reference to “the resolution of conflicts of jurisdiction”, section (c) of the same article is limiting itself to reiterating recognition of the non-binding powers that the Agency already has in this matter. Rather, it makes much more sense to interpret this as referring to the possible acknowledging of a new power in this area. Thus, when the Treaty expressly states that the powers of Eurojust "may include" the functions defined in Art. 85(1) sections (a), (b) and (c), it is referring to the future recognition of new competences that would imply an enhancement of the Agency’s current role in these areas. In the case of section (c), we consider the only interpretation is that of a binding resolution regarding a conflict of criminal jurisdiction. From a semantic point of view, the literal phrase used by Art. 85(1)(c) TFEU in English—essentially identical, as only to be expected, in the Spanish, French, Italian and Portuguese versions consulted—is: “the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network”. Here the resolution of conflicts of jurisdiction is formulated as a complete statement, not subject to any suspensory or limiting condition whatsoever; this makes it impossible to make a semantic inference other than this ad litteram without interpreting its meaning and scope in a purely subjective manner. Finally, after a comparative study of the existing and repealed primary law precepts concerning this issue, we can observe that Art. 85(1)(c) TFEU refers only to conflict resolution, and never includes the word “prevention”. In contrast, Art. 82(1)(b) TFEU, which represents the general precept of the Treaties on conflicts of jurisdiction in criminal matters, does include both words—prevention and resolution—when referring to the same matter. This nuance, which may initially appear trivial, is quite the opposite if we compare both precepts (Art. 82(1)(b) and Art. 85(1)(c) TFEU) with the drafting of the primary law prior to the reform brought

25 A full analysis of the meaning and limits of Art. 85(1) TFEU (a) and (b) can be found in Weyembergh (2011), pp. 91–93.

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in by the Lisbon Treaty. In the TEU-Nice, we find that the only reference to conflicts of criminal jurisdiction, contained in Art. 31(d) TEU-Nice, only included the term “prevention” and not “resolution” when describing the scope of common action by Member States in this matter. Therefore, and although both dimensions (prevention and resolution) are intrinsically related, historically the European legislator has shown a clear intention to differentiate, albeit only in terms of formality, between the preventive stage or scope and the resolution stage or scope of the conflict. Following this hypothesis, the general clause of Art. 82(1)(b) TFEU, which encompasses both the prevention and the resolution of the conflict, is in perfect agreement with the purposes of the procedure concerning direct consultations between national authorities, which may succeed without the need for Eurojust’s intervention. However, Art. 85(1)(c) TFEU is much more specific and refers only to the last stage of the procedure, namely, its resolution, and the intervention of Eurojust in this regard. Yet it would be completely wrong to think that Eurojust could not also participate in the preventive phase of the conflict of criminal jurisdiction, since this competence should be generally understood as forming part of its current powers,26 as well as its specific ones.27 For the same reason, it must be assumed that, when considering in Art. 85(1)(c) TFEU its possible participation in resolving a conflict of criminal jurisdiction, the European legislator is no doubt referring to a new specific competence of Eurojust which is different from the ones currently entrusted to it: a binding resolution of the conflict for all the parties involved. Once it has been determined that the significance and scope of Art. 85(1) (c) TFEU allows Eurojust to be given decision-making and binding powers to resolve the conflict, it must be established which of all the applicable EU legislative instruments would be appropriate for undertaking this reform. In this regard, the Treaties do not make allowances for interpretation since, as we have already indicated, Art. 85(1) TFEU establishes the legal obligation of using the regulation for endowing Eurojust with this future power. However, it does seem appropriate to clarify that, despite the adoption of a new Eurojust Regulation in which its decision proposed along these lines is not binding and effective,28 this is not the same as having to accept that the Agency’s possibly assuming this power has definitely been excluded; In this regard, the approval of Regulation (EU) 2018/1727 does not

26

As part of its general competence to assist and promote cooperation between Member States (Art. 2 of Regulation (EU) 2018/1727, cit.), it can assist in the prevention of conflict in many different ways: from facilitating communication between national authorities to advising and organising a coordination meeting where there is a risk of a conflict of jurisdiction. 27 E.g. Art. 4(2)(a) and (b) Regulation (EU) 2018/1727, cit. 28 The new Regulation (EU) 2018/1727, cit. refers to Art. 85 TFEU as a generic legal basis but does not specifically refer to the power of Art. 85(1)(c) TFEU, although it does develop the role in the conflict. This reaffirms our conviction that Art. 85(1)(c) TFEU can be reserved for a future development in this area that gives the Agency decision-making powers.

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impede future recognition of this binding competency by future amendments via new regulations.29

6.4.2

Eurojust Assistance in the Proposed Instrument on Settlement of Conflicts

The binding intervention of Eurojust in a conflict of jurisdiction as an ultima ratio mechanism for its resolution is the final phase of the conflict prevention and resolution procedure. Consequently, the proposed Regulation for the prevention and resolution of conflicts of jurisdiction should make reference to the role of the Agency in the procedure, in terms of the characteristics of this vertical model. When defining the role of Eurojust in the procedure for our horizontal model, we used as a basis for the features of our proposal Art. 12 of the current Framework Decision on prevention and settlement of conflicts of conflicts of exercise jurisdiction in criminal proceedings. Based on the wording of this article, we recommended several changes to extend the material scope of competence of Eurojust to all types of conflicting cases, and to expand the capacity of the parties (investigated or accused and victim) to indirectly request Eurojust’s intervention by means of potential allegations being raised before the national authorities, in accordance with the provisions of domestic law. These two changes can be fully applied to our aims in this vertical model, and for this reason we recommend they be included in the same terms described above. Nevertheless, Art. 12 of the Framework Decision no longer serves as a basis for defining when the Agency should intervene in this third phase of the prevention and resolution procedure. This provision establishes that “When it has not been possible to reach a consensus (. . .), any of the competent authorities of the Member States will transfer the matter to Eurojust (. . .), if appropriate”. The literal wording of this article is intended to permit an optional referral of the matter to Eurojust (“if applicable”), which excludes a possible mandatory referral in certain circumstances, such as the one we propose in this vertical model. Consequently, there should be a third modification concerning the role of Eurojust in the proposed Regulation of the procedure for preventing and resolving conflicts; namely, including as enabling cases for referral of the matter both those in which the national authorities have not managed to reach an agreement and others in which the deadlines we have previously established to respond to a request for information has not been respected, whenever this non-compliance is understood as a tacit refusal to cooperate—to the extent set out above30—. In all cases, in the

Indeed, this seems to be the spirit of Art. 85(1) TFEU, stating that “(. . .) the European Parliament and the Council shall, by means of regulations (. . .) determine the structure, operation, scope of action and powers of Eurojust”, referring to “regulations” in the plural. 30 See Chap. 5. 29

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absence of an agreement, the referral of the matter to Eurojust should be an obligation on the part of the national authorities.

6.4.3

Powers Granted in Eurojust’s Regulation

Regarding the provisions of the Eurojust Regulation, we have already explained throughout this study that all the powers currently conferred on the Agency regarding conflicts of jurisdiction are still of a non-binding nature. Eurojust’s recommendations on this matter can, at best, take the form of opinions—in the case of the exceptional role of the College granted by Art. 4(4) of the Regulation—, the observance of which is by no means mandatory for the national authorities, even though dissociation from the solution proposed by Eurojust should be explained and reported to the Agency.31 Moreover, we have also pointed out that the wording of the new Eurojust Regulation is quite confusing in this regard, so much so that it appears contradictory. On the one hand, the new instrument provides that competent authorities of the Member States should respond to the written opinions issued by Eurojust on this matter without undue delay and cannot refuse to follow the provisions of this opinion unless their doing so might undermine essential interests of national security, jeopardize the success of an ongoing investigation, or endanger the safety of persons.32 An a contrario sensu reading of the precept shows us that, when none of these three exceptional cases occur, the national authorities will be obliged to respect the solution proposed by Eurojust, which signifies that this opinion may be binding in certain circumstances. However, we can immediately perceive that this is not the real extent or significance the European legislator intended regarding this opinion. The very word used by the Regulation to define Eurojust’s resolution on the conflict (opinion), identical to that was already used in the former Eurojust Decision, tells us that the legal nature of this resolution cannot be the equivalent of a binding decision. Our initial hypothesis is eventually confirmed after reading the recitals of the Regulation, especially recital 14, which goes so far as to state literally that “the written opinions of Eurojust are not binding on the Member States, but are to be answered in accordance with this Regulation”. If we contrast the provisions of the Regulation’s articles with what is stated in its recitals, we can see a clear contradiction, because if the national authorities cannot refuse to follow the provisions of Eurojust’s opinion on the conflict, unless as a result of one of the three exceptional cases mentioned above—national security interests, jeopardizing the success of investigations and the protection of individuals—, it is pointless to affirm at the same time that the written opinions of Eurojust do not bind the Member States in any way, but that they will simply require a response, the

31 32

Art. 4(6) Regulation (EU) 2018/1727, cit. Art. 4(6) in conjunction with Art. 4(4) Regulation (EU) 2018/1727, cit.

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extent of which will be determined in the articles of the Regulation itself. In conclusion, we interpret that this obvious contradiction will have to be clarified by the future actions of the Agency. However, should this not occur in the near future, we have to conclude that the importance given by the new Eurojust Regulation to the opinion “on paper” means, in our view, that this is still a non-binding resolution. In view of these considerations, the characteristics of our vertical model proposal require that the Eurojust Regulation seeks to regulate the procedure adopting this decision, and to state unequivocally that the significance of the resolution will bind all the national authorities involved. In this regard, for control of the decisionmaking procedure, we can take as a reference the procedure described in the new Regulation (EU) 2018/1727, which reserves this operating power for the College,33 which may adopt its decision by a majority of its members.34 However, we should also propose a system of deadlines for the issuing of this resolution. The time limits that we consider suitable and consistent with the rest of the provisions for the proposed model is 90 days for a decision, 45 days for urgent cases, e.g. where are persons in pre-trial detention or the investigations are advanced or at a very different procedural moment, the count beginning when the matter was referred to the Agency. These deadlines may be extended for a maximum of 30 additional days—15 for urgent matters—when this additional information is requested by Eurojust or when is justified by the complexity of the case or other exceptional reasons In these cases, Eurojust must notify all parties of its intention to apply this extension before the deadline. The legal nature of Eurojust’s decision should be that of a binding resolution. Consequently the legal formula of opinion prescribed by both the former Eurojust Decision35 and the new Eurojust Regulation currently in force36 should be rejected outright. For the same reason, the legal form of a recommendation should be discarded. The choice of a new legal form is not simply a matter of terminology. On the contrary, as we will see when analyzing the supranational legal control of this decision, it is a matter of special importance in terms of access to certain “remedies” before the Luxembourg Court, which expressly exclude from their scope of application the opinions and recommendations issued by Union agencies.37 For this reason, we understand that the legal form to be used to define Eurojust’s resolution regarding a conflict should be that of “Eurojust decision”, a term inspired by that

33

Art. 5(2)(b) Regulation (EU) 2018/1727, cit. Art. 14(1) Regulation (EU) 2018/1727, cit. 35 See Art. 7(2) Decision 2002/187/JHA (consolidated version), cit. 36 See Art. 4(4) Regulation (EU) 2018/1727, cit. 37 Such is the case of direct actions for annulment (Art. 263 paragraph 1 TFEU) and actions for failure to act (Art. 265 paragraph 3 TFEU), which will be dealt with in depth in the following Section of this book. 34

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employed for decisions which must produce legal effects vis-à-vis third parties issued by the European Public Prosecutor’s Office.38 Furthermore, it should be clearly and categorically established that the Eurojust decision will be binding, so that compliance by the national authorities involved will always be mandatory, with no exceptions. To this end, any type of reference that allows an interpretation to the contrary, such as that which can currently be observed in the new Eurojust Regulation (see recital 14), should be eliminated from the text. In summary, the main characteristics of any future Eurojust Regulation that establishes the binding effectiveness of the resolution of the conflict are as follows: on initiation of the third phase of the procedure before Eurojust, either after voluntary referral by the national authorities in question, or due to the expiry of the deadline established for the authorities to reach an agreement, Eurojust will exercise its binding powers by acting as a collegiate body. In this scenario, it will issue its decision by a majority of its members within a maximum period of 90 days—45 days for urgent cases—from the referral of the matter, with the possibility of a single extension of 30 and 15 days, respectively. Eurojust’s resolution will take the legal form of a “Eurojust decision”, with legal effects vis-à-vis national authorities and individuals, the former being obliged to adhere to its content, and with no possibility to raise objections to avoid compliance. Nevertheless, Eurojust’s decision may be subject to judicial review in the terms that we will see below.

6.5 6.5.1

Judicial Review Supranational Judicial Control of the Decision: Rationale and Legal Basis

In this proposal for a vertical model, in the absence of consensus among the national authorities involved, it will be an EU agency (Eurojust) which provides a binding resolution on the conflict of jurisdiction, determining, where appropriate, which jurisdiction is better placed to carry out investigation and prosecution. In this situation, the national authorities would be deprived of their decision-making capacity, transferring the final responsibility for decision on the conflict, as well as its possible legal consequences, to a body created and established by the European Union law. It is for this reason that, unlike the horizontal model, in which judicial review of the decision can be fulfilled—albeit, in our opinion, in a very precarious way—with a mere reference to the existing challenge procedures at national level in

38

See e.g. Art. 35 Regulation (EU) 2017/1939, cit. on the decision to be taken by the European Public Prosecutor’s Office after the conclusion of the investigation, including the closing of the case.

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each Member State,39 any proposed model that recognizes the decisions of an agency or body of the European Union as binding should therefore envisage a system of judicial review of this decision at supranational level. For this purpose, the first thing to be determined is who will carry out this review. As this is an issue fully subject to European Union law, on something as delicate for the Member States as is the transferring of jurisdiction in criminal matters, only a supranational jurisdictional control of the Eurojust decision may be considered appropriate.40 On this premise, in accordance with the current institutional system of the EU, the CJEU is the only European institution capable of assuming this competence. However, designing a system of legal control over provisions that affect the AFSJ is certainly a complex issue, especially if we consider that full jurisdiction of the CJEU in this area and, specifically, regarding the instruments created before the Lisbon Treaty, is a relatively recent landmark.41 To propose, therefore, this system of jurisdictional control, it is necessary first to carry out a detailed study of the different possibilities offered by primary law, as this will allow us to specify which of the bodies and chambers of the CJEU are able to deal with these matters, the type of procedure and “appeals” that may be filed, who will be entitled to request this review, and the scope and effects of the decision issued by the Luxembourg Court. These key issues of the judicial review system we are going to propose will be examined in the following Sections. Regarding the applicable legal basis, both a general and wide overview is to be found throughout Arts. 251-281 TFEU, which determine the status and functioning of the current CJEU. These will be the precepts delimiting our analysis, as we previously opted for not proposing the reformulation or adaptation of the primary law for the reasons we gave when explaining our methodology.42 All the same, while strictly adhering to the current wording of the Treaties to address this issue, we are going to conduct our analysis from two different perspectives: principally, regarding the current mechanisms and entities, proposing a jurisdictional control in accordance with the system and chambers established de lege lata; and alternatively, from the point of view of the mechanisms and bodies which, although not yet created, could have their place in line with the current wording of the primary law, reflecting on the opportunity of a possible de lege ferenda improvement in the EU jurisdictional system.

39

With formulas such as those already used in new mutual recognition instruments such as the EIO, see Art. 14 Directive 2014/41/EU, cit. 40 Therefore excluding any type of non-jurisdictional control over the decision, as can be seen, for example, in the OLAF Regulation with the so-called supervisory committee. See Art. 15 Regulation (EU, Euratom) No 883/2013, cit. 41 The full jurisdiction of the CJEU in this area only came into effect on 1 December 2014, pursuant to Art. 10 of Protocol No 36 on transitional provisions (OJ C 115 of 9 May 2008) annexed to the Lisbon Treaty, which established a transitional period of five years during which the jurisdiction of the CJEU, as well as the Commission’s ability to bring infringement proceedings, was limited. 42 See Chap. 4.

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Remedies Available According to Current EU Primary Law

Considering the cases of legitimation that we identified in the previous section, we must ask ourselves whether the “remedies”43 before the Luxembourg Court, currently in accordance with the provisions of the Treaties, meet all the requirements we demand. First of all, as this is the most commonly used access path to the CJEU in this area,44 it should be ascertained whether the preliminary ruling of Art. 267 TFEU could fulfill this function of jurisdictional control.45 According to the wording of the primary law, the national authorities may request the CJEU to issue a preliminary ruling, “concerning the interpretation of the Treaties46” and/or “concerning the validity and interpretation of acts adopted by institutions, bodies, offices or agencies of the Union47”. The second case envisaged in the aforementioned Article would be fully applicable, both in relation to interpreting the provisions of both proposed Regulations on conflict of jurisdiction and on transfer of criminal proceedings, as well as with regard to the jurisdictional control of the binding decision issued by Eurojust, since the Agency’s decision should be seen as an act adopted on the basis of European Union law. In order to reaffirm the jurisdiction of the CJEU regarding Eurojust’s decision via preliminary ruling, it would be appropriate to draw up a provision that expressly recognizes the competence of the CJEU to interpret EU law applied to a decision on the conflict of jurisdiction issued by the Agency. This would apply to those cases in which the national authorities have doubts about its application and/or suitability, e.g. interpretation of the criteria. This formula would be similar to that already recognized by the Regulation on the European Public Prosecutor’s Office regarding conflicts of competence that may arise due to interpretation of the Regulation between this Union body and the national authorities.48

43 Although this is the name given to them in the treaties, the so-called “actions” for annulment and for failure to act that we are going to deal with in the following pages of this book are not technically actions but procedures. However, again for reasons of coherence and homogeneity, we are going to use the term remedy as this is the term used by the sources of Union law. On this issue, Arangüena Fanego (2013), p. 98. 44 According to statistics from the CJEU, of the 735 new cases registered in 2020 —this does not include the activity of the GC—, 556 were references for a preliminary ruling, of which 95 were related to AFSJ matters. In contrast, in the same year, only 37 direct actions were registered. See Court of Justice of the European Union Annual Report 2020- Judicial activity, DOI: 10.2862/ 798624, pp. 208–212. 45 For an exhaustive study on the request for a preliminary ruling, see Broberg and Fenger (2021). 46 Art. 267(a) TFEU. 47 Art. 267(b) TFEU. 48 Art. 42(2)(c) Regulation (EU) 2017/1939, cit. The Court of Justice shall have jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings on: (c) the interpretation of Articles 22 and 25 of this Regulation in relation to any conflict of jurisdiction between the European Public Prosecutor’s Office and the competent national authorities.

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However, although it is true that the preliminary ruling would allow access to supranational control by the CJEU, we must not forget, as we have already stated before, that the national authorities that must resolve the main dispute would in this case be the only ones directly entitled to raise the issue before the Luxembourg Court. As a result, if we only establish supranational judicial review of the issue by means of the preliminary ruling reference, we would at the same time be excluding the direct standing of the parties to request this control. In this sense, it would be difficult to establish that a decision of Eurojust is binding without also transgressing the right to effective judicial protection and effective access to justice (Art. 47 CFREU), especially from the point of view of the rights of the investigated or accused person. For this reason, it is essential to identify other means of allowing the parties to request, both autonomously and directly, supranational judicial review of the binding decision issued by Eurojust. On this point, of all the “remedies” before the CJEU which are currently recognized by the Treaties and which would be applicable in this area, the only ones to confer direct standing to individuals in terms of making an application are the action for annulment49 and the proceedings for failure to act.50 Regarding the action for annulment,51 its appropriate filing rests on the assumption that it refers to a control of the legality of “legislative acts, of acts of the Council, the Commission and the European Central Bank, which are not recommendations or opinions, and of acts of the European Parliament and the European Council producing legal effects vis-à-vis third parties”,52 or of “acts of the bodies or agencies of the Union producing legal effects vis-à-vis third parties”.53 In the case of Eurojust’s binding decision, this is an example of the latter scenario, since it is a Union agency and its act (decision) will produce legal effects both for the national authorities and, especially, for the parties in the proceedings. In this situation, the standing of the parties to file the action for annulment would be fully guaranteed, since primary law allows this for any individual or legal person that withstand the effects of this binding act that affects them directly and individually.54 We have many examples of acknowledging access to this action in the new regulations governing AFSJ agencies. Thus, the newest Regulations of Europol,55 FRONTEX56 and eu-LISA57 establish the possibility for individuals to have access

49

Arts. 263 and 264 TFEU. Art. 265 TFEU. 51 On the current action for annulment, see Martínez Navarro (2019); Castillo de la Torre (2019), pp. 233–266. For an in-depth study of the "action" for annulment in a pre-Lisbon Treaty context, Vidal Fernández (1999). 52 Art. 263 paragraph 1 TFEU. 53 Art. 263 paragraph 1 in fine TFEU. 54 Art. 263 paragraph 3 TFEU. 55 See Arts. 50 and 65(3) Regulation (EU) 2016/794, cit. 56 See Art. 74(5) Regulation (EU) 2016/1624, cit. 57 See Art. 34(5) Regulation (EU) 2018/1726, cit. 50

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to the judicial control of the CJEU on decisions via Art. 263 TFEU. This, however, is exclusively regarding matters relating to the protection of personal data and the transparency and publicity of documents, in accordance with Regulation 1049/2001 on public access to documents of the European Parliament, the Council and the Commission.58 In very similar terms, the new Eurojust Regulation itself restricts access to this action to those matters.59 We believe that the main reason behind the tendency of the European legislator to limit in this way express recognition of access to the action for annulment is because most of the decisions that can currently be taken by the AFSJ agencies do not comply with the requirements of Art. 263 TFEU as they are not, in most cases, binding decisions that can produce legal effects vis-à-vis third parties. Perhaps for this reason the only exception to the previous trend is the European Public Prosecutor’s Office, whose Regulation, which establishes a detailed system of judicial control of its acts, not only provides for access to the action for annulment for matters related to the protection of personal data and publicity of documents and decisions that are not procedural acts,60 but also allows access to this action in cases where the European Public Prosecutor’s Office decides to dismiss a case, providing this decision is directly challenged in accordance with Union Law.61 The filing decisions of this body, which, due to its legal nature, composition and functions, is the closest example to a vertical integration system in the field of European criminal justice, indeed fulfill a decision-making function that produces legal effects vis-à-vis third parties. Consequently, the requirements of Art. 263 TFEU appear to have largely been met in this regard. As for proceedings for failure to act, this is reserved for cases in which, in infringement of the Treaties, the European Parliament, the European Council, the Council, the Commission or the European Central Bank fail to act.62 Similarly, it is recognized for cases where “the bodies, offices and agencies of the Union fail to act”.63 Again, Eurojust would fall within the scope of this latter provision as a European Union agency. However, the expression “in infringement of the Treaties (. . .)” is an objective requirement that needs a more specific consideration. In view of the scant case law of the CJEU regarding Art. 265 TFEU within the AFSJ,64 we understand that the objective requirement for the admission of this action will be met if, once the matter has been referred to Eurojust for the issue of a binding decision, the Agency refrains

58

Regulation (EC) No 1049/2001, cit., in particular Art. 8. See Art. 74(3) Regulation (EU) 2018/1727, cit. 60 See Art. 42(8) Regulation (EU) 2017/1939, cit. 61 See Art. 42(3) Regulation (EU) 2017/1939, cit. 62 Art. 265 TFEU. 63 Art. 265 TFEU in fine. 64 Cf. CJEU Salehi v. European Commission, T-773/16 of 16 October 2017, EU:T:2017:739 (available in French and German), in which the Luxembourg court dismissed the appeal as manifestly unfounded and ordered the appellant to pay the costs. 59

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from making a pronouncement. this would violate the provisions of secondary legislation, which is simply a specification of the provisions in the Treaties. To be exact, Art. 85(1)(c) TFEU, which we have defined as the legal basis to justify Eurojust’s binding decision on the dispute. Therefore, the objective requirement for access to this action will be deemed to have been fulfilled when Eurojust fails to give a decision despite being obliged to do so; and it will be understood as not being fulfilled in cases in which Eurojust has made a pronouncement, but in which its decision does not conform to what was intended by the parties—e.g. lack of reasoning—, in which case the adequate “remedy” will be the action for annulment of Art. 263 TFEU and not the action for failure to act. The standing of the parties regarding the above action is recognized in terms very similar to that of the action for annulment. Any natural or legal person against whom an action other than a recommendation or opinion65 has not been brought by a Union agency, as would be the case with the binding Eurojust decision that we are proposing, is entitled to institute proceedings for failure to act. However, the acceptance of this appeal presupposes a prior extra-procedural condition, insofar as the action will be only admitted if the institution, body, office or agency concerned has previously been requested to rectify its failure to act. Therefore, the requested institution, body, office or agency shall have a period of two months from the date of the request to take a decision. Once the request has been made, if the required institution, body, office or agency has still not defined its position after these two months have elapsed, the action would now become operational, and the affected party will have access to this for a statutory period of another two months.66 We have fewer legislative examples of express recognition of actions for failure to act regarding the activity of AFSJ agencies and entities. The only reference we can highlight is not even to be found in the articles of a Regulation, but among its recitals. This is the case of recital. 89 of the European Public Prosecutor’s Office Regulation, which, due to its unique nature, we reproduce in full below: The provision of this Regulation on judicial review does not alter the powers of the Court of Justice to review the EPPO administrative decisions, which are intended to have legal effects vis-à-vis third parties, namely decisions that are not taken in the performance of its functions of investigating, prosecuting or bringing to judgement. This Regulation is also without prejudice to the possibility for a Member State of the European Union, the European Parliament, the Council or the Commission to bring actions for annulment in accordance with the second paragraph of Article 263 TFEU and to the first paragraph of Article 265 TFEU, and to infringement proceedings under Articles 258 and 259 TFEU.

The aim of the recital appears to be that of an interpretive complement to the legal control provided for in Art. 42 of the Regulation, by expressly including the action for failure to act of Art. 265 TFEU, which is not expressly envisaged later in the article—except from Art. 42(1) in fine—. In any case, and although standing appears to be restricted to the Member States and the EU institutions, this provision is useful

65 66

Art. 265 paragraph 3 TFEU. On the action for failure to act, see Urraca Caviedes (2019), pp. 293–310.

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for our study, as it expressly admits this action, being a good example of how access to this “remedy” could also be used to regulate the lack of positioning on the part of Eurojust once it has been entrusted with the binding resolution of the conflict.

6.5.3

Judicial Review Models in Practice and Other Academic Proposals

Before proposing our own system of jurisdictional control, we should verify whether there is currently any example of a supranational judicial review model in the EU that can serve as a reference. In this regard, we must start by saying that as yet, in the area of criminal cooperation in the AFSJ, there is no precedent for an operational agency whose decisions are binding on the parties, in similar terms and scope to that of the ones we propose in this vertical model. Notwithstanding, the only instrument already adopted which we believe contains examples of jurisdictional control that can be extrapolated to our model is the European Public Prosecutor’s Office, a Union body whose decisions affect the criminal procedural law of the Member States forming part of this enhanced cooperation. Hence, the Regulation itself provides, as we have pointed out, an exhaustive system of judicial control of its acts; this system, due to its scope and extension, is unparalleled in the field of European criminal justice. The system of judicial review established for the European Public Prosecutor’s Office acts is, as we have indicated, set forth in Art. 42 of its Regulation, completed by the interpretation of recitals 88 and 89. It includes a first level of jurisdictional control at national level to check the legality of procedural acts intended to produce legal effects vis-à-vis third parties, as well as for cases in which the Prosecutor’s Office fails to make a pronouncement despite being compelled to do so.67 This first control at national level should be related to the opportunity of the individual, natural or legal person to resort to supranational judicial review by the CJEU, via the action for annulment68 of Art. 263 paragraph 4 TFEU, in an attempt to challenge the decision to dismiss a case.69 Such an action will also be admissible for requesting control of decisions concerning the personal data of the parties concerned, for decisions of the EPPO other than procedural acts, as well as in relation to the right of public access to documents, decisions dismissing Delegated European Prosecutors and any other decisions of an administrative nature.70

67

Art. 42(1) Regulation (EU) 2017/1939, cit. How this remedy should be accessed generated uncertainty at the outset, especially because of the way it was configured in the proposal for the Regulation on the European Public Prosecutor’s Office, in which the latter was considered a national judicial authority, which excluded access to the CJEU via Art. 263 TFEU. See Hernfield (2018), p. 120. 69 On the implications of the decision to drop the case, see Caianiello (2019), pp. 186–199. 70 Art. 42(8) Regulation (EU) 2017/1939, cit. 68

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However, the hard core of supranational judicial review of EPPO activities will be conducted via preliminary ruling requests under Art. 267 TFEU. This will be admissible for interpreting the validity of the procedural acts of the European Public Prosecutor’s Office, provisions of Union Law including the Regulation itself and those of the Regulation on possible conflicts of competence that may occur between the European Public Prosecutor’s Office and the national authorities, a matter which, may be particularly related with our study.71 In addition, parties can also have recourse to the CJEU via an action for failure to act, in the terms that we have previously explained. Judicial review over the actions of the Prosecutor’s Office is completed with the jurisdiction conferred on the CJEU to settle any dispute related to compensation for damages,72 on staff issues73 and on arbitration clauses established in contracts,74 as well as regarding the removal of the European Chief Prosecutor or European Prosecutors when so requested by the European Parliament, the Council or the Commission.75 Thus, pending information on its practical application once this body regularly exercises its powers—it eventually began its activities on 1 June 2021—, the supranational judicial review model of the European Public Prosecutor’s Office is the most fine-tuned of all those that currently exist at legislative level. This is because it expressly includes in the Regulation itself the recognition of preliminary ruling as the main control mechanism, in addition to access to direct actions such as annulment and, to a limited extent, for failure to act. Returning to a more academic perspective, on the issue of supranational judicial control in the procedure for preventing and resolving criminal jurisdiction conflicts, we have the example of a system developed as part of the proposal for a vertical instrument by Ligeti, Klip and Vervaele,76 a model that, in our opinion, is currently at the forefront in doctrinal terms. According to the model proposed by these authors, any decision made between the national authorities on the conflict of jurisdiction may be reviewable, in accordance with the national legislation of each Member State.77 Only when there is no agreement between the national authorities, or after a period of 60 days has elapsed from the start of the direct consultation procedure,78 may any of the national authorities or the investigated or accused person request a binding ruling from Eurojust. Both the person under investigation and the victim may participate in the

71

Art. 42(4) in conjunction with Recital 88 Regulation (EU) 2017/1939, cit. Art. 42(4) Regulation (EU) 2017/1939, cit. on the application of Art. 268 TFEU in conjunction with Art. 340 TFEU. 73 Art. 42(6) Regulation (EU) 2017/1939, cit., on the way of Art. 260 TFEU. 74 Art. 42(5) Regulation (EU) 2017/1939, cit., on the way of Art. 272 TFEU. 75 Art. 42.7 in conjunction with Arts. 14(5) and 16(5) Regulation (EU) 2017/1939, cit. 76 Ligeti et al. (2017), pp. 47 and 50; Ligeti et al. (2018) pp. 62 and 66. 77 Ibidem, Art. 10 vertical model proposal. 78 Ibidem, Art. 11(1) vertical model proposal. 72

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procedure before Eurojust by means of written observations sent directly to the Agency. Once the latter has issued its decision, both the national authorities and the person under investigation or accused may request that the act be challenged via action for annulment of Art. 263 TFEU,79 the purpose of which will be limited to verifying the legality of the act, and not to issuing a new decision on the merits of the conflict of jurisdiction. To complement the jurisdictional control system in the mechanism proposed by these authors, Eurojust has a maximum period of time to adopt a position on the issue. Should the Agency fail to make a decision once this period has elapsed, it will be understood that both the national authorities and the person under investigation or the accused are entitled to use the action for failure to act of Art. 265 TFEU.80 The system proposed by Ligeti, Klip, and Vervaele makes use of all the possibilities offered by current primary law, allowing the investigated or accused person to intervene in the resolution procedure before Eurojust, and legitimizing their access to judicial review via actions for annulment and failure to act. For this reason, we consider this to be the best example of jurisdictional control proposal associated with a vertical model that has been proposed by academia to date.

6.5.4

Supranational Judicial Review: Proposal According to De Lege Lata System

After analyzing and determining the possible appeals applicable in abstracto, and briefly examining references to other examples of models proposed in legislative practice and by academia which could be extrapolated to our own system, the next step in our study will be to consider the kind of judicial review system in concreto that should be applied to our vertical model proposal. As a starting point, we are going to differentiate between two stages: The first is represented by the jurisdictional control system during the phase of the conflict resolution procedure between the national authorities, and on transfer of criminal proceedings agreed on by them. During this phase, the main part of judicial control will be via the challenge possibilities provided for in the national law of each Member State, in compliance with the principles of equivalence and effectiveness and ensuring, at all times, that there is respect for effective legal protection of the investigated or accused person. In addition, the national authorities involved may raise preliminary ruling requests pursuant to Art. 267 paragraph 1 TFEU regarding

79

Specifically, they refer to Article 263(5) TFEU, which allows acts establishing bodies, offices and agencies of the Union to lay down specific conditions or procedures for actions brought against acts intended to produce legal effects by natural or legal persons to whom those acts are addressed. 80 These authors include the possibility of resorting to the first paragraph of Art. 265 TFEU in the explanatory note to Art. 14 of the instrument.

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the interpretation of Union Law and, particularly, on the interpretation of any provision contained in any of the Regulations proposed in our model. Access to this judicial control system should also be expressly acknowledged in the texts of the new proposed Regulations. The second stage, in which jurisdictional control will become predominantly supranational, will commence once the matter has been referred to Eurojust. In accordance with our proposed model, the investigated or accused person and, if applicable, the victim, may only participate indirectly in the Eurojust procedure by means of prior allegations raised before the national authority, in line with the provisions of national law, and cannot raise allegations directly before the Agency. Once the matter is referred, Eurojust will have a maximum period, with a possible extension, of 90 days—45 in urgent cases—to issue its decision. These deadlines will be not of a peremptory nature, but if they are not observed, both the national authorities and the investigated person or the accused will be entitled to initiate an action for failure to act. To do so, they will be obliged to follow the prior extraprocedural steps, requiring Eurojust to reach a decision, for which the Agency will have a period of two months to deal with its inaction. Once this period has elapsed without Eurojust notifying the parties of its decision, the intervention of the CJEU may then be requested due to inaction based on Art. 265 TFEU. Following issuance of Eurojust’s binding decision, the legitimate parties, namely, both the national authorities and the investigated or accused person, may file an action for annulment of Art. 263 TFEU before the CJEU, which will strictly adhere to discussing reasons of legality. Therefore, the decision adopted by Eurojust cannot be discussed for substantive reasons. If the appeal is upheld by the CJEU, the Agency will have to decide again on the conflict; in this case, the urgency of the matter will make its processing a priority. The period for lodging this appeal will be two months from the notification of the decision to the interested party or, if not, from the day on which it was made known, in accordance with the provisions of Art. 263 paragraph 6 TFEU.

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Supranational Judicial Review: Specialized Court Pursuant to Art. 257 TFEU

Primary law allows a de lege ferenda proposal, whereby reference is made to specialized judicial review of the CJEU. In accordance with Art. 257 TFEU, by means of regulations adopted in accordance with the ordinary legislative procedure, courts of first instance may be created which are specialized in certain matters and/or in certain appeals lodged in specific areas. These courts, attached to the General Court, would hear cases at first instance and their decisions could be submitted to cassation or appeal depending on the provisions of the regulations by which they were created. Thus, according to this provision, we might consider the option of creating a court specialized in resolving jurisdiction conflicts between EU Member

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States. In other words, there may be an argument for establishing supranational jurisdictional control specialized in criminal jurisdiction conflicts, in accordance with Union Law.81 Before studying the possibility of having a specialized court to resolve conflicts of criminal jurisdiction in the Union, we must first consider how this control should be carried out. In this regard, there are two main available options: (1) We could understand, as we have so far defended in our de lege lata proposal, that jurisdictional control of the CJEU over the resolution agreed in the conflict should still be subsidiary, insofar as the CJEU would only have the jurisdiction to issue a decision indirectly, by means of preliminary rulings, and directly, albeit secondarily, on controlling the legality of the binding decisions issued by Eurojust via actions for annulment and failure to act. (2) On the other hand, we might understand that the jurisdictional control of a potential specialized court should be entire, in which case the specialized court would be responsible for ruling and issuing a mandatory jurisdictional resolution on the conflict without the need for Eurojust to have previously decided on the same matter. If we accept this last premise, that is, that the new specialized court could resolve the conflict directly, we would at the same time be undermining the competence in the resolution of conflicts that the Treaties, specifically Art. 85(1)(c) TFEU, confer on Eurojust, thereby reducing its powers here to supporting horizontal cooperation between national authorities and general conflict prevention. In addition, it would be necessary to study what mechanism or “remedies” of all those currently existing could serve to bring the conflictive case before the specialized court so that it could decide on the merits of the case. This is because questions referred for a preliminary ruling, being limited to ones of interpretation and protection of Union regulations, may be insufficient for this purpose, and direct annulment and failure to act actions require the existence of a prior decision—or lack of it—by an EU body. For these reasons, we believe that direct resolution of the conflict by the CJEU cannot be easily accommodated under the provisions of the primary law currently in force. Having then ruled out this type of jurisdictional control, we believe that the creation of this specialized court would have the sole objective of making the response of the CJEU more specific for issues relating to conflicts of criminal jurisdiction that could not be resolved by agreement between the authorities or through the binding decision of Eurojust. The access mechanisms for the court would be the same as those proposed in our jurisdictional de lege lata control, the only difference being that the competent court to hear the cases would be this specialized one. Therefore, we must focus our study of the viability of this possible de lege ferenda proposal on the advisability and proportionality of a specialized court dedicated exclusively to this issue.

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In this regard, considering the statistics issued by Eurojust on conflicts of jurisdiction requiring its assistance, we see that this solution does not seem at all proportionate. If we compare the number of cases of conflicts of jurisdiction that require Eurojust’s assistance,82 with the amount of work that other types of issues frequently entails for the Agency, such as, for example, dealing with problems deriving from transmission and execution of EAW83 or EIO,84 we can immediately appreciate this disproportion. Furthermore, of all the cases of conflict of jurisdiction that currently require the assistance of Eurojust, only a very limited number of them are truly conflictive and are finally brought before the College. Most of them are resolved through the intermediation of the national members involved.85 In view of this, and even with the knowledge that the statistics issued by Eurojust do not represent all conflicts of jurisdiction occurring in the EU, it is impossible at the present time to propose the creation of a specialized court exclusively devoted to resolving conflicts of criminal jurisdiction between Member States. Notwithstanding, and on the premise that the number of cases related to criminal matters deal by the CJEU continues to increase yearly, it does seem appropriate to propose as an alternative the establishing of a specialized court with much broader competence: a court to rule on all appeals regarding judicial cooperation instruments in criminal matters in the AFSJ. In fact, cases related to the Area of Freedom, Security and Justice are already the Court’s first subject matter in terms of workload.86 The complexity of the cases before the Luxembourg Court is increasing, and they require the interpretation not only of applicable secondary law precepts, but also the application and protection of the fundamental rights recognized in the Charter. The dual interpretative and nomophylactic task carried out by the Luxembourg Court will only grow exponentially in the future, as a result of the proliferation of 82 See the statistics published in the Eurojust Annual Reports 2002-2017. In the Eurojust Annual Report 2017 we can see that during the whole period covered by the report 49 cases related to conflicts of jurisdiction were notified to Eurojust (see p. 42). 83 During 2017–2020, Eurojust registered 2 235 cases in relation to the application of EAW. See Report on Eurojust’s casework in the field of the European Arrest Warrant (2017-2020), DOI: 10.2812/650674, pp. 9–10. 84 According to the last statistics, despite the pandemic, 1 772 new cases coordinated through Eurojust included EIOs in 2020. See Eurojust Annual Report 2020¸DOI: 10.2812/34915, p. 11 and 54. For a case study of the main difficulties encountered in the practical application of this mutual recognition instrument, see Report on Eurojust’s casework in the field of the European Investigation Order (November 2020), DOI: 10.2812/465460. 85 In practice, according to the Report on Eurojust’s casework in the field of prevention and resolution of conflicts of jurisdiction (updated 2018), cit, p. 9, most conflicts known by Eurojust are resolved by the recommendation of the national members. Only a small percentage of theses cases require a recommendation from the College of Eurojust, and there is not even a precedent for the use of the College’s power foreseen in former Art. 7(2) of Decision 2002/187/JHA (consolidated version), cit. or current Art. 4(4) Regulation (EU) 2018/1727, cit. (non-binding written opinion). 86 According to statistics from the CJEU, the number of new cases related to the AFSJ has doubled during the period 2015-2019, from 53 in 2015 to 106 in 2019. See Court of Justice of the European Union Annual Report 2019 – Judicial activity, DOI: 10.2862/40595, p. 161.

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mutual recognition instruments subject to the Court’s jurisdictional control—such as the EIO, which also includes as a reason for refusal control of respect for fundamental rights87—and of agencies and bodies such as the European Public Prosecutor’s Office, subject to a complex system of judicial control by the CJEU. The CJEU is currently in a situation of excessive burden, with an average duration of proceedings exceeding 15 months for preliminary rulings.88 This situation endangers the right of the defendant to obtain effective judicial protection within a reasonable period recognized as such by Art. 47 paragraph 2 CFREU. Criminal cases must be processed as swiftly as possible, and consequently they require a quick and effective response by the Luxembourg Court. This is evident in matters related to the application of the EAW, since these usually involve a person in custody or a prisoner, and the emergency procedure seems to be an insufficient shifting mechanism. For all these reasons, we consider that proposing the creation of a specialized court in criminal justice matters in the AFSJ may be a feasible and beneficial future solution for all parties; besides, this would not imply great variation with respect to the de lege lata proposal of our vertical model.

References Arangüena Fanego C (2013) Recurso por omisión. In: Pardo Iranzo V (ed) El Sistema Jurisdiccional de la Unión Europea. Thomson Reuters-Aranzadi, Madrid, pp 97–118 Arangüena Fanego C (2017) Orden Europea de investigación: próxima implementación en España del nuevo instrumento de obtención de prueba penal transfronteriza. Revista de Derecho Comunitario Europeo 58:905–939 Bachmaier Winter L (2015) Prueba transnacional penal en Europa: la Directiva 2014/41 relativa a la Orden Europea de Investigación. Revista General de Derecho Europeo, 36 Broberg M, Fenger N (2021) Broberg and fenger on preliminary references to the European Court of Justice. Oxford University Press, Oxford Caianiello M (2019) The decision to drop the case in the new EPPO’s regulation: Res Iudicata or transfer of competence? New J Eur Crim Law 10(2):186–199 Castillo de la Torre F (2019) Recurso de anulación (II), Motivos, intensidad del control judicial, efectos y contenido de la sentencia. In: Signes de Mesa I (Dir.) Derecho Procesal Europeo. Iustel, Madrid, pp 233–266 Daniele M (2015) Evidence gathering in the realm of the European investigation order: from national rules to global principles. New J Eur Crim Law 6(2):179–194 Hernfield HH (2018) The EPPO’s hybrid structure and legal framework. Issues of implementation a perspective from Germany. EUCRIM 2:117–121 Kettunen M (2020) Legitimizing European criminal law: justification and restrictions. Springer, Cham Kostoris, R. (2018) Orden Europea de Investigación y Derechos Fundamentales. In: Arangüena Fanego C, De Hoyos Sancho M (Dirs.), Vidal Fernández B (Coord.) Garantías procesales de

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Art. 11(1)(f) Directive 2014/41/EU, cit. See Court of Justice of the European Union Annual Report 2020- Judicial activity, cit., pp. 14 and 220.

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investigados y acusados: situación actual en el ámbito de la Unión Europea. Tirant lo Blanch, Valencia, pp 321–336 Ligeti K, Klip A, Vervaele JAE (2017) Draft legislative proposals for the prevention and resolution of conflicts of jurisdiction in criminal matters in the European Union, Result of the project Prevention and Settlement of Conflicts of Exercise of Jurisdiction in Criminal Law. European Law Institute, Vienna Ligeti K, Klip A, Vervaele JAE, Robinson G (2018) Preventing and resolving conflicts of jurisdiction in EU criminal law: a European Law Institute Instrument. Oxford University Press, Oxford Martínez Navarro M (2019) El recurso de anulación (I). Cuestiones relativas a la admisibilidad. In: Signes de Mesa I (Dir.) Derecho Procesal Europeo. Iustel, Madrid, pp 193–231 Mitsilegas V (2016) EU criminal law after lisbon: rights, trust and the transformation of justice in Europe. Hart, Oxford Patrone I (2013) Conflicts of jurisdiction and judicial cooperation instruments: Eurojust’s role. ERA Forum 14(2):215–225 Rodríguez-Medel Nieto C (2016) Obtención y admisibilidad en España de la prueba penal transfronteriza. De las comisiones rogatorias a la orden europea de investigación. Thomson Reuters-Aranzadi, Cizur Menor Torres Soca I (2016) La cuestión prejudicial europea. Planteamiento y competencia del Tribunal de Justicia. Bosch, Barcelona Urraca Caviedes C (2019) El recurso por omisión. In: Signes de Mesa I (Dir.) Derecho Procesal Europeo. Iustel, Madrid, pp 293–310 Vidal Fernández B (1999) El proceso de anulación comunitario: control jurisdiccional de la legalidad de las actuaciones de las instituciones comunitarias. Cedecs, Barcelona Weyembergh A (2011) The development of eurojust: potential and limitations of Article 85 of the TFEU. New J Eur Crim Law 2(1):75–99

Further Reading Bock S (2017) Brexit and the future of European criminal law: a German perspective. Crim Law Forum 28:311–318 Böse M, Bröcker M, Schneider A (eds) (2021) Judicial protection in transnational criminal proceedings. Springer, Cham Ryngaert C (2020) Selfless intervention. The exercise of jurisdiction in the common interest. Oxford University Press, Oxford Vermeulen G, Beken TV, Steverlynck S, Thomaes S (2002) Finding the best place for prosecution: European study on jurisdiction criteria. Maklu, Antwerpen

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Action 1 Proposal for a Regulation of the European Parliament and of the Council Establishing a procedure for the prevention and settlement of conflicts of criminal jurisdiction between Member States of the European Union The European Parliament and the Council of the European Union, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(1)(b) thereof In accordance with the ordinary legislative procedure, Whereas: (. . .) Have Adopted this Regulation Chapter 1 General Provisions Article 1 Objective 1. This Regulation establishes a procedure for the settlement of conflicts of criminal jurisdiction between Member States of the European Union based on close cooperation between judicial authorities. 2. Such close cooperation aims to: (a) Avoid situations where the same person is subject to parallel criminal proceedings in different Member States for the same criminal acts.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 A. Hernández López, Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU, Comparative, European and International Criminal Justice 3, https://doi.org/10.1007/978-3-031-15691-5

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(b) Reach consensus on an effective solution in order to avoid adverse consequences arising from such parallel criminal proceedings. Article 2 Subject matter and scope 1. With a view to achieving the objective set out in Article 1, this Regulation provides for: (a) A procedure for establishing contact between the competent authorities of the Member States with a view to confirming the existence of parallel criminal proceedings concerning the same facts involving the same person. (b) The exchange of information, by means of direct consultations, between the competent authorities of two or more Member States conducting parallel criminal proceedings concerning the same facts involving the same person. (c) The procedure for reaching consensus on any effective solution to avoid adverse consequences arising from the existence of such parallel proceedings. 2. This Regulation shall only apply to proceedings before courts having jurisdiction in criminal matters. 3. Without prejudice to the obligations of Member States under the ECHR to ensure the right to a fair trial, proceedings in relation to minor offending which take place within a prison and proceedings in relation to offences committed in a military context which are dealt with by a commanding officer should not be considered to be criminal proceedings for the purposes of this Regulation. Article 3 Definitions For the purposes of this Regulation, the following definitions shall apply: (a) ‘parallel proceedings’ means criminal proceedings, including pre-trial proceedings, which are being conducted in two or more Member States against the same person for the same criminal acts; (b) ‘competent authority’ means the judicial or other authority, which is competent, under the law of its Member State, to carry out the acts envisaged by Article 2(1) of this Regulation; (c) ‘contacting authority’ means the competent authority of a Member State which contacts a competent authority of another Member State to confirm the existence of parallel proceedings; (d) ‘contacted authority’ means the competent authority to which a contacting authority requests confirmation of the existence of parallel criminal proceedings.

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Article 4 Determination of competent authorities 1. Each Member State shall inform the Commission which authorities under its national law are competent to act in accordance with this Regulation. 2. Member States shall determine the competent authorities in a way that promotes the principle of direct contact between authorities. 3. Notwithstanding paragraphs 1 and 2, each Member State may designate, if it is necessary as a result of the organisation of its internal system, one or more central authorities responsible for the administrative transmission and reception of requests for information according to Article 5 and/or for the purpose of asssiting the competent authorities in the consultation process. Member States wishing to make use of the possibility to designate a Central authority or authorities shall communicate this information to the Commission. 4. The Commision shall make the information received under paragraphs 2 and 3 available to all Member States. Chapter 2 Information Exchange Procedure Article 5 Obligation to contact 1. Where the competent authority of a Member State has reasonable grounds to believe that parallel criminal proceedings are taking place or are likely to take place in another Member State, it shall contact the competent authority of that other Member State to confirm the existence of such parallel proceedings or to assess the risk thereof. 2. A suspected or accused person who knows or has reasonable grounds to believe that two or more parallel criminal proceedings are being conducted against him or her may request any of the judicial authorities involved to initiate the contact referred to in paragraph 1. 3. The victim of the crime may request to any of the judicial authorities involved to initiate the contact referred to in paragraph 1 under the same conditions as set out in paragraph 2, provided that domestic law so permits. 4. Notwithstanding paragraphs 2 and 3, the question whether or not reasonable grounds exist should be determined by the contacting authority. 5. If the contacting authority does not know the identity of the competent authority to be contacted, it shall make the necessary enquiries, including via the contact points of the European Judicial Network, in order to obtain the contact details of that competent authority. 6. The contacting authority shall forward the request to the contacted authority by any means whereby a written record can be produced.

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7. The procedure of contacting shall not apply when the competent authorities conducting parallel proceedings have already been informed of the existence of these proceedings by any other means. Article 6 Obligation to reply 1. The contacted authority shall reply to a request submitted in accordance with Article 5 paragraph 1 within any reasonable deadline indicated by the contacting authority or, if no deadline has been indicated, within 15 days of receiving the request, and inform the contacting authority whether parallel proceedings are taking place in its Member State. 2. In cases where the contacting authority has informed the contacted authority that the suspected or accused person is in custody or in pre-trial detention, the request shall be dealt with as a matter of urgency and a reply shall be given within 5 days of receiving the request. 3. If the contacted authority anticipates that it cannot provide a reply within the deadline set by paragraph 1, it shall promptly inform the contacting authority of the reasons thereof and indicate a new deadline within which it shall provide the requested information, which may not exceed 30 days from the date of receipt of the request. If the request shall be dealt with as a matter of urgency, the new deadline may not exceed 15 days from the date of receipt of the request. 4. The contacted authority shall forward the reply to the contacting authority by any means whereby a written record can be produced. 5. If the authority which has been contacted is not the competent authority to reply to the request, it shall without undue delay transmit the request for information to the competent authority and shall inform the contacting authority accordingly. Article 7 Minimum information to be provided in the request 1. The contact request shall provide the following information: (a) contact details of the competent authority; (b) a description of the facts and circumstances that are the subject of the criminal proceedings concerned; (c) all relevant details about the identity of the suspected or accused person; (d) all relevant details about the victims, if applicable; (e) stage that has been reached in the criminal proceedings; (f) information about custody or pre-trial detention of the suspected or accused person, if applicable. 2. The contacting authority may provide any additional information relating to the criminal proceedings as it considers relevant for the purposes of the settlement procedure.

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Article 8 Minimum information to be provided in the response 1. The response by the contacted authority in accordance with Article 6 shall contain the following information: (a) Whether criminal proceedings are being or were conducted in respect of some or all of the same facts as those which are subject of the criminal proceedings referred to in the request for information submitted by the contacting authority, and whether the same persons are involved; In case of a positive answer under (a): (b) Contact details of the competent authority; (c) Stage of the proceedings, or, where a final decision has been reached, the nature of that final decision; (d) Information about the personal situation of the suspected or accused person, including information about pre-trial detention or custody, if applicable. 2. The contacted authority may provide relevant additional information relating to the criminal proceedings that are being conducted or were conducted in its Member State, in particular concerning any related facts which are the subject of the criminal proceedings in that State. Chapter 3 Conflict Settlement Procedure Article 9 Direct consultation procedure 1. When it is established that parallel proceedings exist or are likley to exist, the competent authorities of the Member States shall enter into direct consultations provided for in this Article with a view to reaching consensus on the best placed jurisdiction to investigate or prosecute, without prejudice to any other measures to be taken to avoid the conflict of jurisdiction. 2. The suspected or accused person, as well as the victims, shall be informed of the initiation of direct consultations without undue delay, unless doing so would jeopardise the ongoing investigations or proceedings. 3. In the course of the direct consultations, competent authorities involved in those consultations shall, whenever circumstances permit, reply to requests for information submitted by other competent authorities that are involved. However, they shall not be obliged to provide information which could harm essential national security interests or could jeopardize the safety of individuals. 4. The competent authorities shall inform each other of any important procedural measures which they have taken in the proceedings. 5. As long as the direct consultations are being conducted, the competent authorities shall refrain from taking any decision under their national law which

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might have the effect of preventing the continuation of the direct consultation procedure. In particular, the competent authorities shall not issue a final decision on the merits of the case. 6. The competent authorities involved which initiate the direct consultations referred to in parragraph 1 shall without undue delay inform their respective national members at Eurojust in accordance with Article 21(6)(a) of Regulation (EU) 2018/1727. Article 10 Connecting factors 1. The competent authorities shall determine the best placed jurisdiction taking into account the following factors: (a) Territory in which the majority of the criminality occurred or in which the majority of the loss was sustained. (b) Nationality and usual place of residence of the suspect or accused person. (c) Jurisdiction under whose rules the evidence was obtained or the place where it is most likely to be obtained. (d) Interest of victims. (e) Protection of witnesses. (f) Place where the proceeds or effects of crime are located and the jurisdiction from which they have been secured for criminal proceedings. (g) Stage of criminal proceedings in each jurisdiction. (h) Length of time that proceedings will take to be concluded in each jurisdiction. (i) Definition of the criminal conduct and the penalty for it under the criminal law of the Member States involved in the conflict of jurisdiction. 2. In determining the best placed jurisdiction, the competent authorities shall avoid basing their decision exclusively on any of the following circumstances: (a) A jurisdiction provides for higher penalties associated with the criminal facts being investigated or prosecuted. (b) Rules on admissibility of evidence are more lax in a particular jurisdiction. (c) The proceeds of the crime can be recovered more effectively in a particular jurisdiction. (d) Prosecution of such offence is not a priority in one of the Member States involved. (e) The impact on the resources and costs of prosecuting the case. Article 11 Conclusion of the direct consultation procedure and agreement 1. The direct consultation procedure shall be concluded by an agreement signed by all the competent authorities involved. The agreement shall take the form of a formal procedural act under the national law of each Member State. 2. The agreement shall state the grounds on which it is based and shall contain, at least, the following information:

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(a) Confirmation of the existence or risk of existence of parallel proceedings. (b) Declaration of the jurisdiction deemed to be in the best position to investigate and prosecute the criminal facts. (c) Reasoning and connecting factors that have been considered to choose that jurisdiction, where appropriate. (d) Declaration of the need to concentrate criminal proceedings in a single Member State, where appropriate. (e) Description of any other measures necessary to comply with the decision adopted. 3. If the competent authorities are unable to reach consensus on how to proceed, they shall declare the absence of an agreement by means of a reasoned written statement signed by all the competent authorities involved. The reasoned written statement shall take the form of a formal procedural act under the national law of each Member State. Article 12 Eurojust assistance Where it has not been possible to reach consensus in accordance with Article 11, any of the competent authorities involved may request the assistance of Eurojust in accordance with Article 4(2)(a) or (b) and (4) of Regulation (EU) 2018/1727. Article 13 Judicial review 1. The decision reached in accordance with Article 11 may be subject to review by the competent national courts in accordance with the conditions and procedures laid down by national law. 2. The Court of Justice shall have jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings concerning the interpretation or validity of provisions of this Regulation. Chapter 4 Final Provisions Article 14 Communication between competent authorities 1. Written communication between competent authorities shall be carried out through a secure and reliable decentralised IT system. 2. Where electronic communication in accordance with paragraph 1 is not possible due to the disruption of the decentralised IT system, the nature of the transmitted material or exceptional circumstances, the transmission shall

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be carried out by the swiftest, most appropiate alternative means, taking into account the need to ensure a secure and reliable exchange of information. 3. Where the use of the decentralised IT system is not appropiate in view of the specific circumstances of the communication in question, any other means of communication may be used. Article 15 Personal Data protection The exchange of information and processing of personal data provided for in this Regulation shall be in accordance with the data protection rules laid down in Directive (EU) 2016/680. Article 16 Languages 1. Each Member State shall state in a declaration to be deposited with the Comission which languages, among the official languages of the institutions of the Union, may be used in the procedure of taking contact in accordance with Chapter 2. 2. The competent authorities may agree to use any language in the course of their direct consultations in accordance with Article 9. Article 17 Relations to other legal instruments, agreements and arrangements 1. In so far as other legal instruments or arrangements allow the objectives of this Regulation to be extended or help to simplify or facilitate the procedure under which national authorities exchange information about their criminal proceedings, enter into direct consultations and try to reach consensus on any effective solution aimed at avoiding adverse consequences arising from the parallel proceedings, the Member States may: (a) continue to apply bilateral or multilateral agreements or arrangements in force when this Regulation comes into force. (b) conclude bilateral or multilateral agreemnts or arrangements after this Regulation has come into force. 2. The agreements and arrangements referred to in paragraph 1 shall in no case affect relations with Member States which are not parties to them.

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Action 2 Proposal for a Regulation of the European Parliament and of the Council On transfer of criminal proceedings between Member States of the European Union The European Parliament and the Council of the European Union, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(1)(d) thereof In accordance with the ordinary legislative procedure, Whereas: (. . .) Have Adopted this Regulation Chapter 1 General Provisions Article 1 Objective This Regulation establishes a procedure for the transfer of criminal proceedings between Member States of the European Union in order to increase efficiency in criminal proceedings and to improve the proper administration of justice within the area of freedom, security and justice.

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Article 2 Subject matter and scope 1. With a view to achieving the objective set out in Article 1, this Regulation provides for: (a) A procedure for requesting and accepting transfer of criminal proceedings between competent authorities with a view to concentrate the criminal proceedings in one Member State. (b) A set of criteria to assess the need for such a transfer of criminal proceedings. 2. This Regulation shall only apply to proceedings before courts having jurisdiction in criminal matters. 3. Without prejudice to the obligations of Member States under the ECHR to ensure the right to a fair trial, proceedings in relation to minor offending which take place within a prison and proceedings in relation to offences committed in a military context which are dealt with by a commanding officer should not be considered to be criminal proceedings for the purposes of this Regulation. Article 3 Definitions For the purposes of this Regulation, the following definitions shall apply: (a) ‘offence’ means an act constituting an offence pursuant to national criminal law. (b) ‘competent authority’ means the judicial or other authority, which is competent, under the law of its Member State, to carry out the acts envisaged by Article 2(1) of this Regulation; (c) ‘transferring authority’ means an authority which is competent to request transfer of criminal proceedings; (d) ‘receiving authority’ means an authority which is competent to receive a request for transfer of proceedings. Article 4 Determination of competent authorities 1. Each Member State shall inform the Commission which authorities under its national law are competent to act in accordance with this Regulation. 2. Member States may designate as competent authorities for taking decisions under this Regulation a judge, court, investigating magistrate or prosecutor having jurisdiction to take decisions of a similar nature under their national law and procedures. 3. Notwithstanding paragraphs 1 and 2, each Member State may designate, if it is necessary as a result of the organisation of its internal system, one or more central authorities responsible for the administrative transmission and reception of requests for information according to Article 5 and/or for the purpose of

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asssiting the competent authorities in the consultation process. Member States wishing to make use of the possibility to designate a Central authority or authorities shall communicate this information to the Commission. 4. The Commision shall make the information received under paragraphs 2 and 3 available to all Member States. Article 5 Competence 1. For the purpose of applying this Regulation, any Member State shall have competence to prosecute, under its national law, any offence commited in the territory of another Member State. 2. The competence conferred on a Member State exclusively by virtue of parragraph 1 may be exercised only pursuant to a request for transfer of proceedings. 3. Any Member State having competence under its national law to prosecute an offence may, for the purposes of applying this Regulation, waive or desist from proceedings against a suspected person, in order to allow for the transfer of proceedings in respect of that offence to another Member State. Chapter 2 Transfer of Criminal Proceedings Article 6 Criteria for requesting transfer of proceedings When a person is suspected or accused of having committed an offence under the law of a Member State, the transferring authority of that Member State may request the receiving authority in another Member State to take the proceedings if that would improve the efficient and proper administration of justice, and if: (a) The competent authorities have agreed on the concentration of criminal proceedings to prevent or settle a conflict of criminal jurisdiction following the procedure laid down in Regulation (EU) [. . .], Establishing a procedure for the settlement of conflicts of criminal jurisdiction between Member States of the European Union; or (b) at least one of the following criteria is met: i. the offence has been committed wholly or partly in the territory of the other Member State, or most of the effects or a substantial part of the damage caused by the offence was sustained in the territory of the other Member State; ii. the suspected or accused person is ordinarily resident in the other Member State; iii. substantial parts of the most important evidence are located in the other Member State; iv. there are ongoing proceedings against the suspected or accused person in the other Member State;

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v. 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; vi. the suspected or accused person is serving or is to serve a sentence involving deprivation of liberty in the other Member State; vii. enforcement of the sentence in the other Member State is likely to improve the prospects for social rehabilitation of the person sentenced or there are other reasons for a more appropriate enforcement of the sentence in the other Member State; or viii. the victim is ordinarily resident in the other Member State or the victim has another significant interest in having the proceedings transferred. Article 7 Rights of the suspected or accused persons and victims 1. Before a request for transfer is made, the transferring authority shall, where appropriate and in accordance with national law, inform the person suspected or accused of the offence of the intended transfer. If the suspected or accused person presents an opinion on the transfer, the transferring authority shall inform the receiving authority thereof. 2. Before a request for transfer is made, the transferring authority shall give due consideration to the interests of the victim of the offence and see to it that their rights under national law are fully respected. This includes, in particular, a right for the victim to be informed of the intended transfer. 3. This Regulation shall not have the effect of modifying the obligations to respect the fundamental rights and principles recognised by Article 6 of the Treaty on European Union, including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on judicial authorities in this respect shall remain unaffected. Article 8 Procedure for requesting transfer of proceedings 1. Before the transferring authority makes a request for transfer, it may inform and consult with the receiving authority and provide all relevant information regarding the proceedings. This shall not apply when the receiving authority have already been informed of the need to concentrate proceedings by any other means, in particular, when the concentration of proceedings has been agreed as a result of the procedure established in Regulation (EU) [. . .] establishing a procedure for the prevention and settlement of conflicts of criminal jurisdiction between Member States of the European Union. 2. The request for transfer shall be forwarded by the transferring authority directly to the receiving authority by any means that leave a written record under conditions that allow the receiving authority to establish its authenticity. All other official communications shall also be made directly between those authorities.

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3. A request for transfer shall be accompanied by the original or by a certified copy of the criminal file or relevant parts thereof, by any other relevant documents and by a copy of the relevant legislation, or, where this is not possible, by a statement of the relevant law. 4. The transferring authority shall inform the receiving authority of any procedural acts or measures with a bearing on the proceedings that have been undertaken in the Member State of the transferring authority after the transmission of the request. This communication shall be accompanied by all relevant documents. 5. The transferring authority may withdraw the request for transfer at any time prior to the receiving authority's decision under Article 10 to accept transfer. 6. If the receiving authority is not known to the transferring authority, the latter shall make all necessary inquiries, including through the contact points of the European Judicial Network, in order to obtain the details of the receiving authority. 7. If the authority which receives the request is not the competent authority under Article 4, it shall transmit the request to the competent authority and shall without delay inform the transferring authority accordingly. Article 9 Grounds for refusal 1. The receiving authority of a Member State shall refuse transfer: (a) If the act does not constitute an offence under the law of that Member State. (b) If taking proceedings would be contrary to the ne bis in idem principle. (c) If the suspect cannot be held crimninally liable for the offence due to his or her age. (d) If there is an immunity or privilege under the law of that Member State which makes it impossible to take action. (e) Where the criminal prosecution is statute-barred in accordance with the law of that Member State. (f) If the offence is covered by amnesty in accordance with the law of that Member State. 2. The receiving authority of a Member State may refuse transfer: (a) If the criteria on which the request is based under Article 6 are not considered met. (b) If it is not considered to improve the efficient and proper administration of justice. 3. In the cases referred to in paragraph 2, before deciding to refuse transfer, the receiving authority shall communicate, by appropriate means, with the transferring authority and, where necessary, ask it to supply without delay all additional information required.

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Article 10 Decision on the transfer 1. When a request for transfer of proceedings has been received, the receiving authority shall without undue delay determine whether a transfer of proceedings will be accepted and shall take all necessary measures to comply with the request under its national law. 2. If the receiving authority decides to refuse transfer based on any of the grounds for refusal established in Article 9, it shall inform the transferring authority of the reasons for its decision. 3. The receiving authority shall without delay inform the transferring authority, by any means that leave a written record, of its decision. 4. The transferring and receiving authorities may, where and whenever it is felt appropriate, consult each other with a view to facilitating the decision on the transfer. Article 11 Eurojust assistance The transferring and receiving authorities may, where and whenever appropriate, request the assistance of Eurojust. Chapter 3 Effects of the Transfer Article 12 Effects in the Member State of the transferring authority 1. At the latest upon receipt of the notification of the acceptance by the receiving authority of a transfer of proceedings, the proceedings related to the facts underlying the request for transfer shall, in accordance with national law, be suspended or discontinued in the Member State of the transferring authority, except for any necessary investigations, including judicial assistance to the receiving authority. 2. The transferring authority may open or reopen proceedings if the receiving authority informs it of its decision to not institute or discontinue the proceedings related to the facts underlying the request. 3. The transferring authority may not open or reopen proceedings if it has been informed by the receiving authority of a decision delivered at the end of the proceedings in the Member State of the receiving authority, if that decision presents an obstacle to further proceedings under the law of that Member State or under the application of the ne bis in idem enshrined in Articles 54 CISA and 50 CFREU. 4. The time limit for proceedings will be interrupted in the Member State of the transferring authority from the date of the receipt of the notification of the

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acceptance by the receiving authority of the transfer of proceedings until a decision is delivered at the end of the proceedings in the Member State of the receiving authority. Article 13 Effects in the Member State of the receiving authority 1. The proceedings transferred shall be governed by the law of the Member State to which transfer has been effected. 2. Where compatible with the law of the Member State of the receiving authority, any act for the purpose of proceedings or preparatory inquiries performed in the Member State of the transferring authority or any act interrupting or suspending the period of limitation shall have the same validity in the other Member State as if it had been validly performed in or by the authorities of that Member State. 3. When the receiving authority has decided to accept a transfer of proceedings, it may apply any procedural measures permitted under its national law. 4. If proceedings are dependent on a complaint in both Member States, the complaint brought in the Member State of the transferring authority shall have equal validity with that brought in the other Member State. 5. Where only the law of the Member State of the receiving authority requires that a complaint be lodged or another means of initiating proceedings be employed, those formalities shall be carried out within the time limits laid down by the law of that Member State. The other Member State shall be informed thereof. The time limit shall start to run on the date on which the receiving authority decides to accept a transfer of proceedings. 6. The receiving authority shall inform the transferring authority of the discontinuation of proceedings or of any decision delivered at the end of the proceedings, including whether that decision presents an obstacle to further proceedings under the law of the Member State of the receiving authority, or of other information of substantial value. It shall forward a copy of the written decision. Article 14 Judicial review 1. The decision reached in accordance with Article 10 may be subject to review by the competent national courts in accordance with the conditions and procedures laid down by national law. 2. The Court of Justice shall have jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings concerning the interpretation or validity of provisions of this Regulation.

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Chapter 4 Final Provisions Article 15 Communication between competent authorities 1. Written communication between competent authorities shall be carried out through a secure and reliable decentralised IT system. 2. Where electronic communication in accordance with paragraph 1 is not possible due to the disruption of the decentralised IT system, the nature of the transmitted material or exceptional circumstances, the transmission shall be carried out by the swiftest, most appropiate alternative means, taking into account the need to ensure a secure and reliable exchange of information. 3. Where the use of the decentralised IT system is not appropiate in view of the specific circumstances of the communication in question, any other means of communication may be used. Article 16 Personal Data protection The exchange of information and processing of personal data provided for in this Regulation shall be in accordance with the data protection rules laid down in Directive (EU) 2016/680. Article 17 Languages 1. All the relevant information referred to in Article 8 and the relevant parts of the criminal file shall be translated into the official language or one of the official languages of the Member State to which they are forwarded. 2. Any Member State may, upon the adoption of this Regulation or later, state in a declaration deposited with the Commission that it will accept a translation into one or more other official languages of the institutions of the European Union. The Commission shall make that information available to the other Member States. Article 18 Costs Costs resulting from the application of this Regulation shall be borne by the Member State of the receiving authority, except for costs arising exclusively in the territory of the other Member State.

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Article 19 Relations to other legal instruments, agreements and arrangements 1. In relations between Member States that are bound by the European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972, the provisions of this Regulation shall apply instead of the corresponding provisions of that Convention from the date of application of this Regulation. 2. In so far as other legal instruments or arrangements allow the objectives of this Regulation to be extended or help to simplify or facilitate further the transfer of proceedings, the Member States may: (a) continue to apply bilateral or multilateral agreements or arrangements in force when this Regulation comes into force. (b) conclude bilateral or multilateral agreements or arrangements after this Regulation has come into force. 3. Member States shall notify the Commission of the agreements and arrangements referred to in paragraph 2(a) which they wish to continue applying. Member States shall also notify the Council and the Commission of any agreement or arrangement referred to in paragraph 2(b), within three months of signing it. 4. The instruments and arrangements referred to in paragraph 2 shall in no case affect relations with Member States which are not parties to them.

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Action 1 Proposal for a Regulation of the European Parliament and of the Council Establishing a procedure for the prevention and settlement of conflicts of criminal jurisdiction between Member States of the European Union The European Parliament and the Council of the European Union, Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 82(1)(b) and 85(1)(c) thereof In accordance with the ordinary legislative procedure, Whereas: (. . .) Have Adopted this Regulation Chapter 1 General Provisions Article 1 Objective 1. This Regulation establishes a procedure for the settlement of conflicts of criminal jurisdiction between Member States of the European Union based on close cooperation between judicial authorities. 2. Such close cooperation aims to: (a) Avoid situations where the same person is subject to parallel criminal proceedings in different Member States for the same criminal acts.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 A. Hernández López, Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU, Comparative, European and International Criminal Justice 3, https://doi.org/10.1007/978-3-031-15691-5

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(b) Reach consensus on an effective solution in order to avoid adverse consequences arising from such parallel criminal proceedings. Article 2 Subject matter and scope 1. With a view to achieving the objective set out in Article 1, this Regulation provides for: (a) A procedure for establishing contact between the competent authorities of the Member States with a view to confirming the existence of parallel criminal proceedings concerning the same facts involving the same person. (b) The exchange of information, by means of direct consultations, between the competent authorities of two or more Member States conducting parallel criminal proceedings concerning the same facts involving the same person. (c) The procedure for reaching consensus on any effective solution to avoid adverse consequences arising from the existence of such parallel proceedings. (d) The procedure for a decision of Eurojust on the conflict when the competent authorities involved have not been able to reach consensus. 2. This Regulation shall only apply to proceedings before courts having jurisdiction in criminal matters. 3. Without prejudice to the obligations of Member States under the ECHR to ensure the right to a fair trial, proceedings in relation to minor offending which take place within a prison and proceedings in relation to offences committed in a military context which are dealt with by a commanding officer should not be considered to be criminal proceedings for the purposes of this Regulation. Article 3 Definitions For the purposes of this Regulation, the following definitions shall apply: (a) ‘parallel proceedings’ means criminal proceedings, including pre-trial proceedings, which are being conducted in two or more Member States against the same person for the same criminal acts; (b) ‘competent authority’ means the judicial or other authority, which is competent, under the law of its Member State, to carry out the acts envisaged by Article 2(1) of this Regulation; (c) ‘contacting authority’ means the competent authority of a Member State which contacts a competent authority of another Member State to confirm the existence of parallel proceedings; (d) ‘contacted authority’ means the competent authority to which a contacting authority requests confirmation of the existence of parallel criminal proceedings.

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Article 4 Determination of competent authorities 1. Each Member State shall inform the Commission which authorities under its national law are competent to act in accordance with this Regulation. 2. Member States shall determine the competent authorities in a way that promotes the principle of direct contact between authorities. 3. Notwithstanding paragraphs 1 and 2, each Member State may designate, if it is necessary as a result of the organisation of its internal system, one or more central authorities responsible for the administrative transmission and reception of requests for information according to Article 5 and/or for the purpose of asssiting the competent authorities in the consultation process. Member States wishing to make use of the possibility to designate a Central authority or authorities shall communicate this information to the Commission. 4. The Commision shall make the information received under paragraphs 2 and 3 available to all Member States. Chapter 2 Information Exchange Procedure Article 5 Obligation to contact 1. Where the competent authority of a Member State has reasonable grounds to believe that parallel criminal proceedings are taking place or are likely to take place in another Member State, it shall contact the competent authority of that other Member State to confirm the existence of such parallel proceedings or to assess the risk thereof. 2. A suspected or accused person who knows or has reasonable grounds to believe that two or more parallel criminal proceedings are being conducted against him or her may request any of the judicial authorities involved to initiate the contact referred to in paragraph 1. 3. The victim of the crime may request to any of the judicial authorities involved to initiate the contact referred to in paragraph 1 under the same conditions as set out in paragraph 2, provided that domestic law so permits. 4. Notwithstanding paragraphs 2 and 3, the question whether or not reasonable grounds exist should be determined by the contacting authority. 5. If the contacting authority does not know the identity of the competent authority to be contacted, it shall make the necessary enquiries, including via the contact points of the European Judicial Network, in order to obtain the contact details of that competent authority. 6. The contacting authority shall forward the request to the contacted authority by any means whereby a written record can be produced.

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7. The procedure of contacting shall not apply when the competent authorities conducting parallel proceedings have already been informed of the existence of these proceedings by any other means. Article 6 Obligation to reply 1. The contacted authority shall reply to a request submitted in accordance with Article 5 paragraph 1 within any reasonable deadline indicated by the contacting authority or, if no deadline has been indicated, within 15 days of receiving the request, and inform the contacting authority whether parallel proceedings are taking place in its Member State. In cases where the contacting authority has informed the contacted authority that the suspected or accused person is in custody or in pre-trial detention, the request shall be dealt with as a matter of urgency and a reply shall be given within 5 days of receiving the request. 2. If the contacted authority anticipates that it cannot provide a reply within the deadline set by paragraph 1, it shall promptly inform the contracting authority of the reasons thereof and indicate a new deadline within which it shall provide the requested information, which may not exceed 30 days from the date of receipt of the request. If the request shall be dealt with as a matter of urgency, the new deadline may not exceed 15 days from the date of receipt of the request. 3. If the contacting authority does not receive a reply from the contacted authority within the deadlines established in parragraphs 1 and 2, the contacting authority shall reiterate its request and report the issue to Eurojust in accordance with Article 21 of Regulation (EU) 2018/1727. 4. The contacted authority shall forward the reply to the contacting authority by any means whereby a written record can be produced. 5. If the authority which has been contacted is not the competent authority to reply to the request, it shall without undue delay transmit the request for information to the competent authority and shall inform the contacting authority accordingly. Article 7 Minimum information to be provided in the request 1. The contact request shall provide the following information: (a) contact details of the competent authority; (b) a description of the facts and circumstances that are the subject of the criminal proceedings concerned; (c) all relevant details about the identity of the suspected or accused person; (d) all relevant details about the victims, if applicable; (e) stage that has been reached in the criminal proceedings; (f) information about custody or pre-trial detention of the suspected or accused person, if applicable.

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2. The contacting authority may provide any additional information relating to the criminal proceedings as it considers relevant for the purposes of the settlement procedure. Article 8 Minimum information to be provided in the response 1. The response by the contacted authority in accordance with Article 6 shall contain the following information: (a) Whether criminal proceedings are being or were conducted in respect of some or all of the same facts as those which are subject of the criminal proceedings referred to in the request for information submitted by the contacting authority, and whether the same persons are involved; In case of a positive answer under (a): (b) Contact details of the competent authority; (c) Stage of the proceedings, or, where a final decision has been reached, the nature of that final decision; (d) Information about the personal situation of the suspected or accused person, including information about pre-trial detention or custody, if applicable. 2. The contacted authority may provide relevant additional information relating to the criminal proceedings that are being conducted or were conducted in its Member State, in particular concerning any related facts which are the subject of the criminal proceedings in that State. Chapter 3 Conflict Settlement Procedure Article 9 Direct consultation procedure 1. When it is established that parallel proceedings exist or are likley to exist, the competent authorities of the Member States shall enter into direct consultations provided for in this Article with a view to reaching consensus on the best placed jurisdiction to investigate or prosecute, without prejudice to any other measures to be taken to avoid the conflict of jurisdiction. 2. The suspected or accused person, as well as the victims, shall be informed of the initiation of direct consultations without undue delay, unless doing so would jeopardise the ongoing investigations or proceedings. 3. In the course of the direct consultations, competent authorities involved in those consultations shall, whenever circumstances permit, reply to requests for information submitted by other competent authorities that are involved. However, they shall not be obliged to provide information which could harm essential national security interests or could jeopardize the safety of individuals.

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4. The competent authorities shall inform each other of any important procedural measures which they have taken in the proceedings. 5. As long as the direct consultations are being conducted, the competent authorities shall refrain from taking any decision under their national law which might have the effect of preventing the continuation of the direct consultation procedure. In particular, the competent authorities shall not issue a final decision on the merits of the case. 6. The competent authorities involved which initiate the direct consultations referred to in Article 9(1) shall without undue delay inform their respective national members at Eurojust in accordance with Article 21(6)(a) of Regulation (EU) 2018/1727. Article 10 Connecting factors The competent authorities shall determine the best placed jurisdiction taking into account all the facts and merits of the case. In doing so, they shall consider the criteria set out in the guidelines issued by Eurojust at the time. Article 11 Conclusion of the direct consultation procedure and agreement 1. The direct consultation procedure shall be concluded by an agreement signed by all the competent authorities involved. The agreement shall take the form of a formal procedural act under the national law of each Member State. 2. The agreement shall state the grounds on which it is based and shall contain, at least, the following information: (a) Confirmation of the existence or risk of existence of parallel proceedings; (b) Declaration of the jurisdiction deemed to be in the best position to investigate and prosecute the criminal facts; (c) Reasoning and connecting factors that have been considered to choose that jurisdiction, where appropriate; (d) Declaration of the need to concentrate criminal proceedings in a single Member State, where appropriate; (e) Description of any other measures necessary to comply with the decision adopted. 3. If the competent authorities are unable to reach consensus on how to proceed, they shall declare the absence of an agreement by means of a reasoned written statement signed by all the competent authorities involved. The reasoned written statement shall take the form of a formal procedural act under the national law of each Member State. 4. The competent authorities involved shall inform of the outcome of the direct consultation procedure to their respective national members at Eurojust in accordance with Article 21(6)(a) of Regulation (EU) 2018/1727.

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Article 12 Eurojust assistance on the conflict 1. Where a contacted authority has not replied in accordance with the rules established in Article 6, the contacting authority may request the assistance of Eurojust in accordance with Article 4(1) and (5) of Regulation (EU) 2018/ 1727. 2. Where it has not been possible to reach consensus in accordance with Article 11, any of the competent authorities involved may request the assistance of Eurojust in accordance with Article 4(2)(a) and (b) of Regulation (EU) 2018/ 1727. 3. The suspected or accused person may request any of the judicial authorities involved to request the assistance of Eurojust referred to in paragraph 2. 4. The victim of the crime may request to any of the judicial authorities involved to request the assistance referred to in paragraph 2 under the same conditions as set out in paragraph 2, provided that domestic law so permits. 5. Notwithstanding paragraphs 3 and 4, the necessity to request the assistance of Eurojust in the conflict shall be exclusively determined by the competent authorities involved. Chapter 4 Eurojust Decision on the Conflict Article 13 Eurojust competence 1. Where it has not been possible to come to an agreement on the conflict within 90 days of the opening of the direct consultation procedure established in Article 11, any of the competent authorities involved may request Eurojust to decide on the conflict in accordance with Article 4(4) of Regulation (EU) 2018/1727. The suspected or accused person or the victim of the crime may also request a Eurojust decision on the conflict following the same procedure and conditions established in Article 12(3), (4) and (5). 2. Eurojust may also act on its own to decide on the conflict when it has been informed pursuant Article 11(4) that it has not been possible to come to an agreement. 3. Eurojust shall immediately notify all competent authorities involved in the conflict of the initiation of a decision procedure pursuant this Article. 4. The competent authorities shall without undue delay transmit to Eurojust all information that it might be relevant for the decision on the conflict. 5. After the initiation of the decision procedure at Eurojust, the competent authorities shall refrain from taking any decision under their national law which might have the effect of preventing or conditioning the decision of

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Eurojust on the conflict. In particular, the competent authorities shall not issue a final decision on the merits of the case. Article 14 Eurojust decision on the conflict 1. Eurojust will decide on the conflict assesing all the facts and merits of the case, with a view to improving the efficient and good administration of justice. 2. If the information transmitted in accordance with Article 13(4) is considered insufficient to give a decision on the conflict, Eurojust may request additional information from the competent authorities involved. The information shall be provided without undue delay. 3. Eurojust shall adopt a decision on the conflict within 90 days after the initiation of the procedure established in this Chapter. If the suspected or accused person is in custody or in pre-trial detention, Eurojust shall give a decision on the conflict within 45 days of the initiation of the procedure established in this Chapter. 4. When a request for additional information in accordance with paragraph 2 has been made, the deadline established in paragraph 3 could be extended for 30 days. If the suspected or accused person is in custody or pre-trial detention, the extension could not be longer than 15 days. 5. Eurojust decision shall be written and reasoned. It shall contain, at least, all the information referred to in Article 11(2). 6. Eurojust shall notify its decision on the conflict to all the competent authorities involved. The decision will be of a binding nature. Chapter 5 Judicial Review Article 15 Judicial review 1. The decision reached in accordance with Article 11 may be subject to review by the competent national courts in accordance with the conditions and procedures laid down by national law. 2. The Eurojust decision on the conflict issued in accordance with article 14 shall be subject to review before the Court of Justice in accordance with the fourth paragraph of Article 263 TFEU. 3. Any failure from Eurojust to act within de deadlines established in Article 12 shall be subject to review before the Court of Justice in accordance with Article 265 TFEU. The action shall be admissible only if Eurojust has first been called upon to act. If, within two months of being so called upon, Eurojust has not defined its position, the action may be brought within a further period of two months.

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4. The Court of Justice shall have jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings concerning the interpretation or validity of provisions of this Regulation. Chapter 6 Final Provisions Article 16 Communication between competent authorities 1. Written communication between competent authorities shall be carried out through a secure and reliable decentralised IT system. 2. Where electronic communication in accordance with paragraph 1 is not possible due to the disruption of the decentralised IT system, the nature of the transmitted material or exceptional circumstances, the transmission shall be carried out by the swiftest, most appropiate alternative means, taking into account the need to ensure a secure and reliable exchange of information. 3. Where the use of the decentralised IT system is not appropiate in view of the specific circumstances of the communication in question, any other means of communication may be used. Artículo 17 Personal Data protection The exchange of information and processing of personal data provided for in this Regulation shall be in accordance with the data protection rules laid down in Directive (EU) 2016/680. Article 18 Languages 1. Each Member State shall state in a declaration to be deposited with the Comission which languages, among the official languages of the institutions of the Union, may be used in the procedure of taking contact in accordance with Chapter 2. 2. The competent authorities may agree to use any language in the course of their direct consultations in accordance with Article 9.

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Article 19 Relations to other legal instruments, agreements and arrangements 1. In so far as other legal instruments or arrangements allow the objectives of this Regulation to be extended or help to simplify or facilitate the procedure under which national authorities exchange information about their criminal proceedings, enter into direct consultations and try to reach consensus on any effective solution aimed at avoiding adverse consequences arising from the parallel proceedings, the Member States may: (a) continue to apply bilateral or multilateral agreements or arrangements in force when this Regulation comes into force. (b) conclude bilateral or multilateral agreements or arrangements after this Regulation has come into force. 2. The agreements and arrangements referred to in paragraph 1 shall in no case affect relations with Member States which are not parties to them. Article 20 Amendments to Regulation (EU) 2018/1727 The Regulation (EU) 2018/1727 is hereby amended as follows: 1. Recital 14 shall be deleted. 2. Article 4 shall be amended as follows: (a) In paragraph 4, the words ‘written opinion’ shall be replaced by ‘written decision’. (b) In paragraph 6, the words ‘paragraph 4 or 5’ shall be replaced by ‘paragraph 5’ (c) The following paragraph shall be added: 7. The competent authorities of the Member States concerned shall comply with the written decisions referred to in paragraph 4 without undue delay.

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Action 2 Proposal for a Regulation of the European Parliament and of the Council On transfer of criminal proceedings between Member States of the European Union The European Parliament and the Council of the European Union, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(1)(d) thereof In accordance with the ordinary legislative procedure, Whereas: (. . .) Have Adopted this Regulation Chapter 1 General Provisions Article 1 Objective This Regulation establishes a procedure for the transfer of criminal proceedings between Member States of the European Union in order to increase efficiency in criminal proceedings and to improve the proper administration of justice within the area of freedom, security and justice.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 A. Hernández López, Conflicts of Criminal Jurisdiction and Transfer of Proceedings in the EU, Comparative, European and International Criminal Justice 3, https://doi.org/10.1007/978-3-031-15691-5

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Article 2 Subject matter and scope 1. With a view to achieving the objective set out in Article 1, this Regulation provides for: (a) A procedure for requesting and accepting transfer of criminal proceedings between competent authorities with a view to concentrate the criminal proceedings in one Member State. (b) A set of criteria to assess the need for such a transfer of criminal proceedings. 2. This Regulation shall only apply to proceedings before courts having jurisdiction in criminal matters. 3. Without prejudice to the obligations of Member States under the ECHR to ensure the right to a fair trial, proceedings in relation to minor offending which take place within a prison and proceedings in relation to offences committed in a military context which are dealt with by a commanding officer should not be considered to be criminal proceedings for the purposes of this Regulation. Article 3 Definitions For the purposes of this Regulation, the following definitions shall apply: (a) ‘offence’ means an act constituting an offence pursuant to national criminal law. (b) ‘competent authority’ means the judicial or other authority, which is competent, under the law of its Member State, to carry out the acts envisaged by Article 2(1) of this Regulation. (c) ‘transferring authority’ means an authority which is competent to request transfer of criminal proceedings. (d) ‘receiving authority’ means an authority which is competent to receive a request for transfer of proceedings. Article 4 Determination of competent authorities 1. Each Member State shall inform the Commission which authorities under its national law are competent to act in accordance with this Regulation. 2. Member States may designate as competent authorities for taking decisions under this Regulation a judge, court, investigating magistrate or prosecutor having jurisdiction to take decisions of a similar nature under their national law and procedures. 3. Notwithstanding paragraphs 1 and 2, each Member State may designate, if it is necessary as a result of the organisation of its internal system, one or more central authorities responsible for the administrative transmission and reception of requests for information according to Article 5 and/or for the purpose of

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asssiting the competent authorities in the consultation process. Member States wishing to make use of the possibility to designate a Central authority or authorities shall communicate this information to the Commission. 4. The Commision shall make the information received under paragraphs 2 and 3 available to all Member States. Article 5 Competence 1. For the purpose of applying this Regulation, any Member State shall have competence to prosecute, under its national law, any offence commited in the territory of another Member State. 2. The competence conferred on a Member State exclusively by virtue of parragraph 1 may be exercised only pursuant to a request for transfer of proceedings. 3. Any Member State having competence under its national law to prosecute an offence may, for the purposes of applying this Regulation, waive or desist from proceedings against a suspected person, in order to allow for the transfer of proceedings in respect of that offence to another Member State. Chapter 2 Transfer of Criminal Proceedings Article 6 Criteria for requesting transfer of proceedings When a person is suspected or accused of having committed an offence under the law of a Member State, the transferring authority of that Member State may request the receiving authority in another Member State to take the proceedings if that would improve the efficient and proper administration of justice, and if: (a) The competent authorities have agreed on the concentration of criminal proceedings to prevent or settle a conflict of criminal jurisdiction following the procedure laid down in Regulation (EU) [. . .], Establishing a procedure for the settlement of conflicts of criminal jurisdiction between Member States of the European Union; or (b) Eurojust has issued a binding decision on a conflict of criminal jurisdiction which determines the concentration of proceedings, in accordance with the powers granted by Regulation (EU) 2018/1727; or (c) at least one of the following criteria is met: i. the offence has been committed wholly or partly in the territory of the other Member State, or most of the effects or a substantial part of the damage caused by the offence was sustained in the territory of the other Member State; ii. the suspected or accused person is ordinarily resident in the other Member State;

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iii. substantial parts of the most important evidence are located in the other Member State; iv. there are ongoing proceedings against the suspected person in the other Member State; v. 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; vi. the suspected person is serving or is to serve a sentence involving deprivation of liberty in the other Member State; vii. enforcement of the sentence in the other Member State is likely to improve the prospects for social rehabilitation of the person sentenced or there are other reasons for a more appropriate enforcement of the sentence in the other Member State; or viii. the victim is ordinarily resident in the other Member State or the victim has another significant interest in having the proceedings transferred. Article 7 Rights of the suspected or accused persons and victims 1. Before a request for transfer is made, the transferring authority shall, where appropriate and in accordance with national law, inform the person suspected or accused of the offence of the intended transfer. If the suspected or accused person presents an opinion on the transfer, the transferring authority shall inform the receiving authority thereof. 2. Before a request for transfer is made, the transferring authority shall give due consideration to the interests of the victim of the offence and see to it that their rights under national law are fully respected. This includes, in particular, a right for the victim to be informed of the intended transfer. 3. This Regulation shall not have the effect of modifying the obligations to respect the fundamental rights and principles recognised by Article 6 of the Treaty on European Union, including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on judicial authorities in this respect shall remain unaffected. Article 8 Procedure for requesting transfer of proceedings 1. Before the transferring authority makes a request for transfer, it may inform and consult with the receiving authority and provide all relevant information regarding the proceedings. This shall not apply when the receiving authority have already been informed of the need to concentrate proceedings by any other means, in particular, when the concentration of proceedings has been agreed as a result of the procedure established in Regulation (EU) [. . .] establishing a procedure for the prevention and settlement of conflicts of criminal jurisdiction between Member States of the European Union.

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2. The request for transfer shall be forwarded by the transferring authority directly to the receiving authority by any means that leave a written record under conditions that allow the receiving authority to establish its authenticity. All other official communications shall also be made directly between those authorities. 3. A request for transfer shall be accompanied by the original or by a certified copy of the criminal file or relevant parts thereof, by any other relevant documents and by a copy of the relevant legislation, or, where this is not possible, by a statement of the relevant law. 4. The transferring authority shall inform the receiving authority of any procedural acts or measures with a bearing on the proceedings that have been undertaken in the Member State of the transferring authority after the transmission of the request. This communication shall be accompanied by all relevant documents. 5. The transferring authority may withdraw the request for transfer at any time prior to the receiving authority's decision under Article 10 to accept transfer. 6. If the receiving authority is not known to the transferring authority, the latter shall make all necessary inquiries, including through the contact points of the European Judicial Network, in order to obtain the details of the receiving authority. 7. If the authority which receives the request is not the competent authority under Article 4, it shall transmit the request to the competent authority and shall without delay inform the transferring authority accordingly. Article 9 Grounds for refusal 1. The receiving authority of a Member State shall refuse transfer: (a) If the act does not constitute an offence under the law of that Member State. (b) If taking proceedings would be contrary to the ne bis in idem principle. (c) A decision procedure on a conflict of jurisdiction involving the proceedings has been initiated by Eurojust and its written decision is still pending. (d) If the suspect cannot be held crimninally liable for the offence due to his or her age. (e) If there is an immunity or privilege under the law of that Member State which makes it impossible to take action. (f) Where the criminal prosecution is statute-barred in accordance with the law of that Member State. (g) If the offence is covered by amnesty in accordance with the law of that Member State. 2. The receiving authority of a Member State may refuse transfer: (a) If the criteria on which the request is based under Article 7 are not considered met.

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(b) If it is not considered to improve the efficient and proper administration of justice. 3. In the cases referred to in paragraph 2, before deciding to refuse transfer, the receiving authority shall communicate, by appropriate means, with the transferring authority and, where necessary, ask it to supply without delay all additional information required. Article 10 Decision on the transfer 1. When a request for transfer of proceedings has been received, the receiving authority shall without undue delay determine whether a transfer of proceedings will be accepted and shall take all necessary measures to comply with the request under its national law. 2. If the receiving authority decides to refuse transfer based on any of the grounds for refusal established in Article 9, it shall inform the transferring authority of the reasons for its decision. 3. The receiving authority shall without delay inform the transferring authority, by any means that leave a written record, of its decision. 4. The transferring and receiving authorities may, where and whenever it is felt appropriate, consult each other with a view to facilitating the decision on the transfer. Article 11 Eurojust assistance The transferring and receiving authorities may, where and whenever appropriate, request the assistance of Eurojust. Chapter 3 Effects of the Transfer Article 12 Effects in the Member State of the transferring authority 1. At the latest upon receipt of the notification of the acceptance by the receiving authority of a transfer of proceedings, the proceedings related to the facts underlying the request for transfer shall, in accordance with national law, be suspended or discontinued in the Member State of the transferring authority, except for any necessary investigations, including judicial assistance to the receiving authority. 2. The transferring authority may open or reopen proceedings if the receiving authority informs it of its decision to not institute or discontinue the proceedings related to the facts underlying the request.

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3. The transferring authority may not open or reopen proceedings if it has been informed by the receiving authority of a decision delivered at the end of the proceedings in the Member State of the receiving authority, if that decision presents an obstacle to further proceedings under the law of that Member State or under the application of the ne bis in idem enshrined in Articles 54 CISA and 50 CFREU. 4. The time limit for proceedings will be interrupted in the Member State of the transferring authority from the date of the receipt of the notification of the acceptance by the receiving authority of the transfer of proceedings until a decision is delivered at the end of the proceedings in the Member State of the receiving authority. Article 13 Effects in the Member State of the receiving authority 1. The proceedings transferred shall be governed by the law of the Member State to which transfer has been effected. 2. Where compatible with the law of the Member State of the receiving authority, any act for the purpose of proceedings or preparatory inquiries performed in the Member State of the transferring authority or any act interrupting or suspending the period of limitation shall have the same validity in the other Member State as if it had been validly performed in or by the authorities of that Member State. 3. When the receiving authority has decided to accept a transfer of proceedings, it may apply any procedural measures permitted under its national law. 4. If proceedings are dependent on a complaint in both Member States, the complaint brought in the Member State of the transferring authority shall have equal validity with that brought in the other Member State. 5. Where only the law of the Member State of the receiving authority requires that a complaint be lodged or another means of initiating proceedings be employed, those formalities shall be carried out within the time limits laid down by the law of that Member State. The other Member State shall be informed thereof. The time limit shall start to run on the date on which the receiving authority decides to accept a transfer of proceedings. 6. The receiving authority shall inform the transferring authority of the discontinuation of proceedings or of any decision delivered at the end of the proceedings, including whether that decision presents an obstacle to further proceedings under the law of the Member State of the receiving authority, or of other information of substantial value. It shall forward a copy of the written decision. Article 14 Judicial review

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1. The decision reached in accordance with Article 10 may be subject to review by the competent national courts in accordance with the conditions and procedures laid down by national law. 2. The Court of Justice shall have jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings concerning the interpretation or validity of provisions of this Regulation. Chapter 4 Final Provisions Article 15 Communication between competent authorities 1. Written communication between competent authorities shall be carried out through a secure and reliable decentralised IT system. 2. Where electronic communication in accordance with paragraph 1 is not possible due to the disruption of the decentralised IT system, the nature of the transmitted material or exceptional circumstances, the transmission shall be carried out by the swiftest, most appropiate alternative means, taking into account the need to ensure a secure and reliable exchange of information. 3. Where the use of the decentralised IT system is not appropiate in view of the specific circumstances of the communication in question, any other means of communication may be used. Article 16 Personal Data protection The exchange of information and processing of personal data provided for in this Regulation shall be in accordance with the data protection rules laid down in Directive (EU) 2016/680. Article 17 Languages 1. All the relevant information referred to in Article 8 and the relevant parts of the criminal file shall be translated into the official language or one of the official languages of the Member State to which they are forwarded. 2. Any Member State may, upon the adoption of this Regulation or later, state in a declaration deposited with the Commission that it will accept a translation into one or more other official languages of the institutions of the European Union. The Commission shall make that information available to the other Member States. Article 18 Costs

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Costs resulting from the application of this Regulation shall be borne by the Member State of the receiving authority, except for costs arising exclusively in the territory of the other Member State. Article 19 Relations to other legal instruments, agreements and arrangements 1. In relations between Member States that are bound by the European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972, the provisions of this Regulation shall apply instead of the corresponding provisions of that Convention from the date of application of this Regulation. 2. In so far as other legal instruments or arrangements allow the objectives of this Regulation to be extended or help to simplify or facilitate further the transfer of proceedings, the Member States may: (a) continue to apply bilateral or multilateral agreements or arrangements in force when this Regulation comes into force. (b) conclude bilateral or multilateral agreements or arrangements after this Regulation has come into force. 3. Member States shall notify the Commission of the agreements and arrangements referred to in paragraph 2(a) which they wish to continue applying. Member States shall also notify the Council and the Commission of any agreement or arrangement referred to in paragraph 2(b), within three months of signing it. 4. The instruments and arrangements referred to in paragraph 2 shall in no case affect relations with Member States which are not parties to them.