dr Tomasz Ostropolski Head of Unit, European Criminal Law Ministry of Justice, Poland BRUXELLES, 12 JUNE 2013

Transcription

1 dr Tomasz Ostropolski Head of Unit, European Criminal Law Ministry of Justice, Poland BRUXELLES, 12 JUNE 2013

2 Territoriality Personality - active personality (ex-)prohibition of extradition of own nationals - passive personality Protective Universality + Residence Grounds of jurisdiction may overlap

3 1. Need for effective fight against transnational crime prevent jurisdiction gaps 2. Treaty crimes (broad jurisdiction +aut dedere aut iudicare) 3. EU substantive criminal law instruments - even broader grounds of jurisdiction 4. Factual reason free movement of persons

4 No exclusive jurisdiction in criminal law Civil law choice of forum, choice of law (Brussels I, Brussels II, Brussels II bis etc.) Criminal law lex criminalis, eius iurisdictio (forum=>applicable law, except double criminality, BUT art.4.1. MLA 2000 (formalities and procedures indicated by requesting state apply)

5 1. Economics of proceedings (effectiveness, optimal use of time and means) 2. Risk to infringe ne bis in idem principle 3. Interests of participants of proceedings (e.g. victims)

6 Only 25 ratifications (12 EU states) Why: Divergent statutes of limitations Double criminality Prohibition to surrender own nationals (outside EU) Alternatives: Bilateral agreements 1959 MLA Convention in conjunction with 2000 MLA Convention Principle of reciprocity

7 1972 European Convention on the Transfer of Proceedings in Criminal Matters a) Obligation to consider whether it can waive, suspend or transfer proceedings when it becomes aware of any proceedings pending in another state party b) States concerned shall endeavour as far as possible to determine which single state shall continue to conduct proceedings c) Evaluate each of the circumstances in which the Convention provides for a possible request to transfer proceedings

8 Proposal for a Framework Decision on transfer of criminal proceedings (initiative of 15 MS during Swedish PRES 2009) Planned to replace 1972 Convention between EU Member States no continuation so far

9 Greek initiative for a framework decision (ne bis in idem+conflicts of jurisdiction) 2. Sectorial approach (obligation to cooperate and, if possible concentrate proceedings in one state FD on terrorism, cybercrime, organised crime, counterfeiting of euro) ineffective Commission Green Paper on conflicts of jurisdiction and ne bis in idem

10 Territoriality principle poss. to refuse a warrant if offence commited on own territory indirect effect for concentration of proceedings Pending case (lis pendens) as a ground for refusal Concurring requests Division of jurisdiction national returned to serve custodial sentence (art. 4.5 and 5.3. EAW) Other instruments of mutual recognition division of jurisdiction on different stages of proceedings: supervision order, criminal penalties, confiscation, probation, deprivation of liberty

11 2003 Recommendations (criteria of allocation of jurisdiction) One of the key tasks in Eurojust Decision (coordinate, accept that one of MS may be in a better postition to undertake investigation or perform specific tasks) confirmed in FD 2009/948 European Public Prosecutor s Office (?) (competent to take binding decisions on allocation of jurisdiction?)

12 2009 Initiative for a framework decision (5 MS, PRES CZ) Ambitious, far-fetched project Watered down in negotiations - Only ne bis in idem cases - No established criteria of allocation of jurisdiction

13 1. Obligation to contact (reasonable grounds to believe that parallel proceedings are being conducted in another Member State) 2. Obligation to reply (confirm or deny the existence of such proceedings within reasonable deadline) +minimum info to be provided in request and reply 3. Obligation to enter into direct consultations (reach consensus to avoid adverse consequences of parallel proceedings, possibly concentrate them in one MS) 4. Inform about the outcome of proceedings

14 Implementation deadline 15 June 2012! So far only 5 MS have implemented: (Cyprus, Finland, Germany, Netherlands, Poland) FD 2009/948 DOES NOT REGULATE TRANSFER OF PROCEEDINGS! APPLICABLE INSTRUMENTS STILL IN FORCE

15 Art. 54 Schengen Convention A person whose trial has been finally disposed of in one contracting party may not be prosecuted in another contracting party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing contracting party.

16 applies to proceedings by which a public prosecutor discontinues, without the involvement of the court, a prosecution, once the accused has fulfilled certain obligations and paid a certain sum of money (C-187/01, C-385/01 Gozutok and Brugge) same acts: identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected (C-436/04 Esbroeck; C- 288/05 Kretzinger) covers also suspended custodial sentence (C-288/05 Kretzinger); applies where the sentence could never, on account of specific features of procedure have been directly enforced (C- 297/07 Bourquain) Applies where the accused is acquitted finally for lack of evidence (C-150/05 van Straaten)

17 the accused is acquitted finally because prosecution of the offence is time-barred (C-467/04 Gasparini) the suspension decision does not, under the national law of that State, definitively bar further prosecution and therefore does not preclude new criminal proceedings, in respect of the same acts, in that State (C-491/07 Turansky) it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible, in the light of the said relevant abovementioned criterion, to find that they are the same acts (c-367/05 Kraaijenbrik)

18 C-469/03 Miraglia Does NOT apply: after the Public Prosecutor has decided not to pursue the prosecution on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without any determination whatsoever as to the merits of the case

19 1. No comprehensive instrument on issues of concurrent jurisdiction and its consequences 2. Ambitious plans failed 3. Complex system of sectorial instruments 4. Indirect effects of mutual recognition -> ground for refusal + division of jurisdiction 5. Wait and see for effects of FD 2009/948 (consultation and information) implement! 6. Future? maybe new Eurojust framework, European Public Prosecutor s Office, EU instrument on transfer of proceedings?

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