Module 9 Conflicts of Jurisdiction, Transfer of Proceedings and the Ne Bis in Idem Principle

Module 9 – Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle -Version 3.0

The European Judicial
training network /
With the support of the European Union
Project description
This module is part of a standard training programme in judicial cooperation in criminal matters within the European Union (EU-Copen Training Programme).
The ‘programme’ as a whole is an educational training tool designed to facilitate the training of judicial authorities in the field of judicial cooperation in criminal matters within the European Union. The tool is primarily aimed at any national authority responsible for judicial training, for the purpose of developing specific training courses on the subject, as well as to any stakeholder involved in judicial cooperation as part of their day-to-day professional practice. It may also be used by anyone interested in this field.
The methodological approach of the ‘standard programme’ aims to provide authoritative information while also focusing on the practical aspects of the mechanisms of judicial cooperation.
This tool was originally developed based on two projects run in 2005-2006, and subsequently in 2009, by the Institute for European Studies (Free University of Brussels) and ECLAN (European Criminal Law Academic Network) with funding from the European Commission (under the AGIS programme and subsequently the 'Criminal Justice' programme) of the Ministry of Justice of the Grand Duchy of Luxembourg and the International University Institute of Luxembourg.
In 2012, the European Judicial Training Network, which has been involved in the Copen Training programme since it began, took over the project’s management and coordination. Version 3 (3.0) of the Copen Training tool is therefore the property of the European Judicial Training Network . Any comments regarding its content and any requests for information about Copen Training should be sent to , quoting Copen Training.
The main authors of version 3.0 are: Serge de Biolley, Gisèle Vernimmen and Anne Weyembergh. Veronica Santamaría and Laura Surano contributed to the previous versions.
How to use this document:
The ‘standard training programme in judicial cooperation in criminal matters’ training tool and all parts thereof are the property of the European Judicial Training Network. Its use is subject to the following conditions:
1. Its content and layout cannot be altered in any way, except:
- where space is explicitly provided for the insertion of data relating to training organised on the basis of this standard programme (organiser’s logo, date, place etc.)
- where space is explicitly provided for the insertion of data relating to the national situation of the Member State concerned
2. If the user feels that corrections or additions need to be made to the content of the tool or parts thereof, provided each of the following criteria is met:
- the additions or amendments must be accompanied by a foreword indicating the origin of these amendments or additions
- these additions and amendments must be notified to the project’s development team , quoting Copen training.
3. No section of the tool or its parts may be copied or separated from the tool as a whole without the express permission of the Institute for European Studies and of its authors.
/ What’s new in this version?
In particular, this new version (3.0) takes into account:
-Framework Decision 2009/948 of 30 November 2009 on the prevention and settlement of conflicts of jurisdiction in criminal proceedings;
-The proposal for a Council Framework Decision on the transfer of proceedings;
-The case-law of the Court of Justice of the European Union on the ne bis in idem principle
-The Charter of Fundamental Rights of the European Union
/ Aims of this module
The aim of Module 9 is twofold: to present the issue of conflicts of jurisdiction as well as the modes of cooperation designed to prevent (coordination of proceedings, setting criteria for the allocation of jurisdiction) and to settle such conflicts (the ne bis in idem principle), including the transfer of proceedings. The case-law of the Court of Justice of the European Communities in this area is briefly discussed.
Relevant legislation

-Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime, as amended by Decision 2009/426/JHA of 16 December 2008  Compendium B.6.3.

-Framework Decision 2009/948 of 30 November 2009 on the prevention and settlement of conflicts of jurisdiction in criminal proceedings  Compendium B.3.15.

-European Convention on Mutual Assistance in Criminal Matters of 20 April 1959  Compendium A.1.1.

-Convention of 19 June 1990 implementing the Schengen Agreement  Compendium B.2.1.

For further information => see the following websites:

• the website of the European Judicial Network (e.g. for the status of implementation of FD 2009/948, within ‘Library’, go to ‘Status of Implementation’ and ‘Notifications and Declarations’:

• Eurojust's website (for guidelines on conflicts of jurisdiction)

• the website of the EU Council:

• the website of the Court of Justice (for case-law):
• the website of the Council of Europe (for the texts of the conventions and their status of ratification):
• the website of the European Court of Human Rights (for case-law):

Contents
/

1.Introduction: the concept of ‘conflict of jurisdiction’ and ascertaining such conflicts

1.1.Concept

1.1.1Positive and negative conflicts of jurisdiction

1.1.2Conflicts of jurisdiction in the strict and in the broad sense

1.2.Ascertaining conflicts of jurisdiction

2.Preventing conflicts of jurisdiction: coordination of prosecution and setting criteria for the allocation of competence

2.1.Lack of binding rules

2.2.Eurojust’s assistance

2.3.The assistance of the European Judicial Network

2.4.The Eurojust guidelines

2.5.Framework Decision on the prevention and settlement of conflicts of jurisdiction in criminal proceedings

2.6.Examples of provisions in sectoral instruments

3.Transfer of proceedings and the laying of information for the purpose of proceedings

4.The resolution of conflicts of jurisdiction: the ne bis in idem principle

4.1.Origins

4.1.1Legislative origins

4.1.2Case-law sources

4.2.Scope of the ne bis in idem principle

4.2.1The transnational scope of the principle

4.2.2The material limitations of the principle

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Module 9 – Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle -Version 3.0

1.Introduction: the concept of ‘conflict of jurisdiction’ and ascertaining such conflicts

1.1.Concept

Conflicts of jurisdiction can be ‘negative’ or ‘positive’. A distinction should also be drawn between conflicts of jurisdiction in the strict sense and conflicts of jurisdiction in the broad sense.

1.1.1Positive and negative conflicts of jurisdiction

A negative conflict of jurisdiction occurs when no court or tribunal assumes competence to hear a case. For example, States A and B both have territorial jurisdiction; they therefore deem that it is the courts of the territory in which the offence has been committed that are competent, but they perceive this in different ways: A regards the only criterion for territorial jurisdiction as being the place of the effect of the infringement (theory of result), whereas B regards the only criterion as the place of the conduct/omission constituting the infringement (theory of conduct). If an individual fires his revolver on one side of a border, from the territory of State A, at a person located in the territory of the neighbouring State, State B, the courts of A cannot assume competence because they apply the theory of result. Meanwhile, the courts of B cannot assume competence either, since B only applies the theory of conduct. The outcome is a negative conflict of jurisdiction.

To avoid negative conflicts of jurisdiction and the impunity they entail, rules have been established internally within Member States and at international level with the aim of increasing competence criteria.

To prevent cases such as the example provided above from occurring, most Member States apply the theory of ubiquity, a sort of combination of the theory of conduct and the theory of result. Beyond territorial jurisdiction, extraterritorial jurisdiction has also been expanded to include concepts such as active, passive and even universal nationality jurisdiction.

Within the European Union, most sectoral legislation includes a clause requiring Member States to adopt the necessary measures to establish their jurisdiction in respect of the infringements it covers. Some of these provisions are relatively conventional, in that they can, by and large, be traced back to the conventional principle of territorial jurisdiction, since they only concern cases where the infringement has been committed, fully or partially, in the territory of that State. Other competence criteria, however, are provided for. The most common criterion is that of active nationality jurisdiction, broadened to cover an infringement committed for the benefit of a legal person established in the national territory. More rarely, the criterion is that of passive nationality jurisdiction. However, these less traditional requirements are not usually binding. More commonly, any Member State may decide not to apply these rules, or to apply them only in certain cases or circumstances. Nonetheless, in this instance, Member States are required, as a minimum, to assume their active nationality jurisdiction if they do not extradite their nationals (application of the aut dedere aut judicare obligation)[1]. However, other instruments go further: in this regard, see Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (Article 9)[2], under which competence based on passive nationality is required; Article 10 of Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems[3], which expressly covers attacks committed remotely; Article 10 of Directive 2011/36/EU of 5 April 2011 on trafficking in human beings[4], which prohibits making competence based on active nationality subject to double criminality requirements, for example; and Article 17 of Directive 2011/93 of 13 December 2011 on the sexual exploitation of children[5], which contains the same provisions as FDs 2005/222/JHA and 2011/36/JHA.

As a result of this extension of the competence criteria, negative conflicts of jurisdiction scenarios are tending to become rarer.

By contrast, there are more and more concrete instances of positive conflicts of jurisdiction. That is, instances where several courts deem themselves competent to hear a case, due to the aforesaid increase in competence criteria, but also to developments in cross-border crime, trafficking, the possibility of committing infringements remotely and so on. Accordingly, even if only conventional territorial jurisdiction is at issue, cases of multi-territory infringements are growing and, with them, the risk of positive conflicts of jurisdiction. This creates the need:

• to prevent them from occurring by laying down common rules defining the criteria for the assignment of jurisdiction => the preventive route (cf. Section 2 below);
• to provide for the transfer of criminal proceedings to prevent conflicts before they occur or to settle them once they do arise (see Section 3 below);
• to settle them through the ne bis in idem principle => the remedial route (see Section 4 below);

1.1.2Conflicts of jurisdiction in the strict and in the broad sense

A conflict of jurisdiction in the strict sense is a conflict concerning criminal proceedings against the same person and for the same acts. In other words, cases that may lead to a ne bis in idem situation.

Bear in mind, however, particularly in the context of combating organised crime, that the proper administration of justice also calls for the coordination of prosecution where the cases concerned relate to the same acts but not to the same persons, or to the same persons but not to the same acts. These are conflicts of jurisdiction in the broad sense.

1.2.Ascertaining conflicts of jurisdiction

Positive conflicts of jurisdiction can be ascertained in several ways. Examples include:

-receipt of a request for judicial cooperation whose content indicates to the receiving authority that there is a risk of parallel investigations;

-a bilateral exchange of information via police cooperation[6];

-a positive search (a ‘hit’) in the Europol information system, or a link evidenced in an analysis work file;

-a link evidenced in the Eurojust Case Management System[7];

-a link evidenced by the cross-checking of certain information communicated by Eurojust against information held by Europol and vice versa.

Despite the active encouragement in paragraph 49e) of the Action Plan adopted by the Council and by the Commission in December 1998[8] to examine this possibility, there is currently no European register of pending proceedings.

The capacity to detect links between criminal cases, and therefore potential positive conflicts of jurisdiction, is nevertheless likely to grow as automated data processing increases.

2.Preventing conflicts of jurisdiction: coordination of prosecution and setting criteria for the allocation of competence

2.1.Lack of binding rules

Within the EU, there is currently no instrument that provides for the coordination of prosecutions in a binding manner, or which determines binding competence criteria in criminal matters.

In practice, the coordination of prosecution has proved to be vital in the European Union, in view of its objectives. This is implied by the objective of establishing an area of freedom, security and justice, as well as by Article 82 (1)(b) of the Treaty on the Functioning of the European Union (TFEU), which states that ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures (...) to prevent and resolve conflicts of jurisdiction between Member States’. However, for the time being, the coordination of prosecution essentially relies on the goodwill of the competent judicial authorities. Greater awareness among judicial officers in this regard is key. This is in the interests of defendants and victims but also, more generally, in the interests of the proper administration of criminal justice, to avoid unnecessary duplication of investigative work and prosecution conducted in parallel in two or more Member States. It also goes hand in hand with the mutual confidence that must, in principle, be displayed by the competent authorities.

2.2.Eurojust’s assistance

Eurojust’s central role is ‘coordination’ in investigations and prosecutions (see Module 4). The prevention and settlement of conflicts of jurisdiction form an important part of this coordination role.

Article 85(1)(c) of the TFEU expressly provides that the tasks entrusted to Eurojust by regulation may include ‘the strengthening of judicial cooperation, including by the settlement of conflicts of jurisdiction (...)’. Eurojust could therefore potentially be given binding powers in this field. Paragraph 3.1.1. of the Stockholm Programme calls for making use of this possibility by submitting new proposals ‘on the basis of an assessment of the implementation of Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust’[9]. Pending a proposal for a Regulation from the Commission, expected in 2013, and an agreement on such a Regulation, this is therefore currently only a prospect.

Legally speaking, at present, the following rules apply:

- Formal request: Eurojust usually acts through informal contacts between the national authorities and the national member. Eurojust (via its College or the national member) may also, however, forward formal requests to the national authorities. In these requests, it is explicitly provided that Eurojust ‘may ask the competent authorities of the Member States concerned to consider accepting that one of them may be in a better position to undertake an investigation or to prosecute specific acts’ (Article 6(1)(a)(ii) and Article 7(1) (a)(ii) of the Eurojust decision)[10].

• These formal requests are not legally binding but will be very seriously consideredby the national authorities[11].
• National authorities that do not comply with the Eurojust request must usually give reasons for their refusal, whether or not the request came from the College (Article 8 of the Eurojust Decision, as amended by Decision 2009/426/JHA)[12].

-Mandatory referral to the College: since the strengthening of Eurojust by Decision 2009/426/JHA, referral to the College is mandatory when the national members of the Member States affected by a conflict of jurisdiction cannot agree on how to settle that conflict. Mandatory referral to the College means that the competent authorities will receive a Eurojust opinion (Article 7(2) of the Eurojust Decision). But this opinion is still non-binding.

-Provision of information to Eurojust: the strengthening of the Eurojust Decision in 2008 places an obligation on Member States to ensure the systematic transfer of certain information to Eurojust. This includes the obligation to inform the national member of cases where conflicts of jurisdiction have arisen or are likely to arise (Article 13(7)(a) of the Eurojust Decision, as amended by Decision 2009/426/JHA). See Module 4 for further details on the transfer of information to Eurojust. The Member States must implement this obligation with effect from 2011.

-Framework Decision 2009/948/JHA of 30 November 2009 places an obligation on competent authorities dealing with parallel investigations relating to the same person and the same acts to work together to determine which State is best placed to continue the proceedings[13]. Where this dialogue does not result in an agreement, the matter will be referred to Eurojust ‘where appropriate’, under Article 12.

Beyond these rules expressly provided for in European legislation, it is important to remember that Eurojust is a preferential channel for resolving conflicts of jurisdiction. It can take action at two levels:

-supporting cooperation: the national authorities concerned may seek Eurojust’s help in facilitating cooperation. Such support may, if necessary, take the form of the organisation of a coordination meeting by Eurojust.

-opinion on the appropriate solution to the conflict:

• Eurojust has gradually developed objective criteria for the settlement of conflicts of jurisdiction (see the Eurojust guidelines below, published in Annex IV of the 2004 annual report), so that an impartial assessment of the situation can be made, possibly with the involvement of the College.
• A Eurojust opinion should therefore be sought, even where there is no legal obligation to do so, whenever the national authorities fail to reach agreement. It is difficult to imagine instances where it would be inappropriate to seek Eurojust’s opinion, except perhaps in borderline cases where the trial itself is about to start or has already started in one of the States concerned.

To seek the support or opinion of Eurojust, simply contact your national member (see Module 4).

Examples
Cases in which Eurojust has intervened include that of the Prestige oil tanker in November 2002, when both the French and the Spanish coastlines were affected by pollution. The authorities of the two countries both regarded themselves as competent to initiate proceedings, and decided to refer to Eurojust to settle their differences. In this instance, the Eurojust College concluded that Spain was the State best placed to bring the proceedings, for two reasons: firstly because the majority of the evidence had been gathered in Spain, and secondly due to the higher number of injured parties in that country (800 in Spain, compared with 71 in France).
In 2010, Eurojust oversaw the negotiation of an agreement between the Spanish, Dutch and British authorities in a drugs trafficking case with regards to which authority was best placed to initiate proceedings.
In a case involving the trafficking of cocaine from South America to Europe and money laundering at several banks, Sweden opened an investigation in 2008. The case concerned other Member States, including FR, ES and third countries such as Colombia, the United States and Switzerland. Eurojust assisted in setting up a joint investigation team and organised at least ten coordination meetings that helped to resolve potential conflicts of jurisdiction and to reach an agreement on where proceedings should be brought (Sweden). This operation led to the arrest of over 30 members of the organised crime group, the seizure of tonnes of cocaine (worth over 450 million euros), as well as of the laundered proceeds of these crimes (almost 6 million euros).

2.3.The assistance of the European Judicial Network

Eurojust’s intervention will not always be necessary. Cooperation may take place through direct contact between the authorities concerned. If such direct contact proves difficult, for instance due to language difficulties, difficulties in identifying the correct contact person or a lack of understanding of the respective systems, the authorities concerned may call on the EJN contact points to act as intermediaries.