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Преодоление конфликтов уголовной юрисдикции в Европейском союзе: настоящее и будущее

Цель: Освещение основных проблем, связанных с регламентацией преодоления конфликтов уголовной юрисдикции в Европейском союзе и разработка правовых способов их преодоления и недопущения.

Методология: Автором применялся сравнительно-правовой, формально-юридический метод и метод включенного наблюдения.

Результаты: В статье сделан вывод о том, что государства-члены ЕС имеют договоренности о согласовании положений внутреннего уголовного и уголовно-процессуального права, тем самым, вызывая европеизацию национального права. В свою очередь, гражданам Европы было обещано, что они будут жить в «месте свободы, безопасности и правосудия». Автором отмечается несомненная значимость данной цели, однако при этом подчеркивается, что до достижения этого идеала предстоит пройти длинный путь. Сделан вывод о том, что ЕС состоит из 27 регионов, каждый из которых вправе осудить лицо в пределах границ уголовной юрисдикции его собственного закона, поэтому уход от конфликтов уголовной юрисдикции требует европейского решения. Автором сделан вывод о том, что Рамочное решение 2009/948/JHA от 30 ноября 2009 г. не содержит решений, которые могут быть универсальными и применимыми во всех странах ЕС. В статье подробно проанализировано это Рамочное решение, отмечены его недостатки и уделено основное внимание фактической проблеме: нормам об уголовной юрисдикции государств-членов ЕС. В статье автором обоснован ряд моделей возможного решения проблем преодоления конфликтов уголовной юрисдикции в Европейском союзе, которые основаны на данных, полученных в результате сравнительно-правового проекта, длительное время проводимого автором.

Новизна/оригинальность/ценность: Статья обладает высокой научной и практической ценностью, поскольку содержит важные авторские предложения, обобщения и выводы, связанные с преодолением конфликтов уголовной юрисдикции в Европейском союзе.

Ключевые слова: Европейский Союз, сравнительное уголовное право, сравнительное уголовно-процессуальное право, конфликты уголовной юрисдикции.

Sinn A.

Avoiding conflicts of criminal jurisdiction

in the European Union: present and future

Purpose: Research of problems of conflicts of criminal jurisdiction in the European Union and development of legal ways on their prevention and permission.

Methodology: The authors used the comparative legal method, the formal legalistic method, the method of participant observation.

Results: In this paper, based on the study of a wide range of international legal instruments and scientific materials, it is substantiated that the Member States of the European Union have agreed to harmonize their criminal law, bringing about a Europeanization of national criminal law. In return, they have promised the citizens of Europe that they will live in an «area of freedom, security, and justice». It should be obvious that this area is not intended to be a first-class lounge for the ideal EU citizen. And we are still a long way from this ideal: even the question of which legal system should apply to a criminal offence that touches multiple Member States has not been adequately addressed. Instead, the EU consists of 27 areas, each representing a courtroom where a court can convict a defendant within the bounds of its own law’s criminal jurisdiction. Avoiding conflicts of criminal jurisdiction requires a European solution. The Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings missed a chance to propose a solution that does justice to the idea of a common area. In this article were analyzed the Framework Decision, highlights its weaknesses, and focuses on the actual problem: the criminal jurisdiction statutes of the member states. It proposes two new models of a possible solution that have emerged from a sweeping comparative law project initiated by the author.

Novelty/originality/value: The paper has very high scientific and practical value as it contains author’s offers, generalizations and conclusions significant for avoiding conflicts of criminal jurisdiction in the European Union.

Keywords: European Union, comparative criminal law, comparative criminal procedural law, conflicts of criminal jurisdiction.

A. Introduction

“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” (Art 67(1) TFEU; see also Art 3(2) TEU). The entirety of Title V of the Treaty on the Functioning of the European Union is devoted to the “area of freedom, security, and justice”, inviting the assumption that it is more than a European political slogan and is instead intended as a guarantee to the citizens of the EU. The bases for bringing about this area of freedom, security, and justice are the Tampere Programme (1999–2004) [42], the Hague Programme (2004–2009) [43], and the Stockholm Programme (2010–2014) [48]. One of the earliest stated objectives of the present and future AFSJ was to prevent offenders from exploiting the differences in the Member States’ criminal justice systems to their advantage. It was thus decided early on that verdicts and decisions of national courts should, while ensuring proper adherence to standards of legal certainty for citizens and economic actors, enjoy recognition and enforcement throughout the Union [42]. The principle of mutual recognition became the cornerstone of European criminal law and criminal procedure [42, 24]. The content, scope, and legitimacy of this principle are a matter of considerable controversy [4, P. 557, 8, 15, 17, P. 406, 19, P. 521, 24, P. 23, 29, P. 141, 30, 34, P. 528, 35, P, 515]. But a larger problem went essentially unnoticed: the recognition, grounded in public international law, of other states’ criminal jurisdiction and the inevitable conflicts that come about as a result. The problem could be avoided if recognizing the authority of one state to prosecute effectively barred other states from doing so. But that is not the case, since the individual sovereignty of each state leads to an accumulation of applicable laws, not, as with private international law, a conflicts regime [15, 30]. It has been recognized at least since the decision of the PCIJ in the Lotus case [49] that a state’s criminal jursidiction can extend beyond its territory as permitted by public international law. Within these legal bounds, prosecutorial authority is an extension of state sovereignty. The basic position is that unless it is exercised arbitrarily, [3, 15, 20, 30] the scope of individual states’ prosecutorial authority is unlimited.

From the perspective of public international law, there is nothing to bar states from exercising their jurisdiction over matters which also have connections to other states as long as there is a “genuine link” [40, 2, 1, 15] with the prosecuting state. In fact, the logic behind this principle is to create a thick “net” of competing criminal jurisdictions [21, 7, P. 336, 18], ensuring that every offence can be prosecuted somewhere. But for the accused, an accumulation of criminal jurisdictions leads to uncertainty, since he cannot know where he may be prosecuted (and thus with which law he must comply). But one of the basic jobs of the criminal law is to account for freedom: citizens’ freedom from prosecution [36].

The coexistence of different criminal jurisdictions within the “area of freedom, security, and justice” leads to multiple prosecutions of the same offence and even to repeat punishment for the same crime. This problem must be solved.

B. The international ne bis in idem principle, Art 54 of the Schengen Implementing Convention, and Art 50 of the Charter of Fundamental Rights of the European Union

The transnational prohibtion on repeat punishment is only a partial solution. It only applies when the process is so advanced in the first prosecuting state as to have brought about an enforceable verdict. Article 54 of the Schengen Implementing Convention and Art 50 of the Charter of Fundamental Rights of the EU [15] thus protect against multiple punishments for, but not multiple prosecutions of the same offence. Nothing stops an individual from being subjected to criminal proceedings in multiple states, since individual states’ forbearing to prosecute is simply the result of a cooperation generalized by Art 54 of the Schengen Implementing Convention [11, P. 499, 521, 38, P. 624, 31].

An example:

One does not have to reach for the much-discussed extreme examples of transnational organized crime or terrorism in order for the problems of multiple parallel prosecutions to be illustrated vividly. Take, for instance, the killing of a French citizen by a German citizen in Spain. Three criminal jurisdictions immediately lay claim to the prosecution of the offender. Three procedures are initiated, three prosecutors set to work against the accused. Germany has jurisdiction under § 7(2)(1) StGB, which states that German criminal law applies to offences committed abroad by German citizens that would also have been crimes under the law of the place where the offence was committed. Spain has jurisdiction under Art 23 LOPJ (its Law on Judicial Authority) since the offence was committed on Spanish territory, and France has jurisdiction because its criminal code applies to every offence committed against a French citizen abroad (Arts 113–117 CP). According to the recognized principles of public international law when determining national criminal jurisdiction, Germany can rely on the active personality principle, Spain on the territoriality principle, and France on the passive personality principle.

Such a case makes it clear how easily an offender can find himself in a situation where three states have the power to convict him under their respective laws. If the offender is at large, he can find himself confronted with three prosecutions for one offence if each state decides to exercise their jurisdiction. This situation is not only ineffective and expensive; it is also unnecessary, since the offender has only committed one offence and need only be punished one time. He should not of course have the privilege of choosing the land likely to treat him most leniently. But neither should he be kept in the dark about the country in and legal system under which he faces prosecution: that is part of what an area of “justice” requires. Justice and the rule of law are concerned with creating legal certainty. The present resolution of cases where offenders face multiple parallel prosecutions relies either on informal coordination after the offence (and thus opens the door to e.g. police agreements about where to arrest the offender) [21, P. 60] or simply a first-come-first-served pecking order [16, P. 60].

Coincidence or informal arrangement about place of arrest thus decide the future course of the prosecution and punishment, and on the applicable law. And in cases of the former, prosecution often comes only after an extensive extradition proceeding, bringing with it further uncertainties.

C. Solutions

In the search for possible solutions to conflcts of jurisdiction, every model falls on a spectrum between certainty on the one hand and the “net” of jurisdictions on the other. The net idea dominates the models that seek to solve the jurisdictional conflict as late as possible, as is most clearly illustrated by the European ne bis in idem solution. The net remains extended until the final resolution of a prosecution in one state, and multiple prosecutions remain possible. It is only in the carrying-out of the sentence that the rule attaches at the last minute to prevent a person from being punished twice for the same offence [46]. At the other end are models that seek to decide the jurisdiction question at the earliest possible moment, even, where possible, by making a decision before the offence is committed and foreclosing any possibility of multiple prosecutions at all. The goal here is the elimination of the “net” in favour of jurisdictional law that allows the prosecuting authority to be determined before the offence is committed [10, P. 521, 12, P. 112, 7, P. 336, 4, 30]. But models are conceivable that float between these extremes, even as they favour one or the other by e.g. permitting informal coorindination among prosecuting authorities [5, 21, 31, 32] or the decoupling of substantive law from jurisdictional rules [13, P. 115].

I. EU solutions

Within the EU, multiple parallel prosecutions of different individuals for the same offence or for directly connected offences are on the rise, a development that the Council and the Commission have noted with increasing concern [46]. Solving the competence conflicts described above is one of the most urgent problems in the development of European criminal law.

The EU’s competence to address the problem at the highest level comes from Art 82(1)(b) TFEU. This provision gives the European Parliament and the Council the power to pass measures under the ordinary legislative procedure to “prevent and settle conflicts of jurisdiction between Member States”.

II. The Framework Decision on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings

Even before the TFEU entered into force, the Council, acting on the competence conferred by the former Art 31(1)(c) and (d) TEU, adopted on 30 November 2009 Framework Decision 2009/948/JHA on the prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings [49]. The Framework Decision came into force on 15 December 2009, and Member States were required to implement it by 15 June 2012. The old Art 31(1)(c)–(d) TEU was rather more narrowly formulated than the present rule in Art 82(1)(b) TFEU, speaking as it did only of the avoidance of conflicts of competency between member states. This nuance is not entirely meaningless, since it points toward authority to prevent competence or jurisdiction conflicts from ever arising in the first place, while the mention of “settlement” in the title of the Framework Decision puts coordination measures on equal footing. The title of the Framework Decision is oriented toward the new Art 82(1)(b) TFEU rather than the old Art 31(1)(c)–(d) TEU, surely a result of the immediately pending Lisbon Treaty at the time of the decision. But it is clear that these conflicts have not yet been able to be “prevented”, which is why the remit was expanded to “settling” them in the interim.

1. The content of the Framework Decision

The goal of the Framework Decision is to avoid parallel prosecutions by mandating consultations be-

tween Member States’ authorities at an early stage. In this case, “parallel proceedings” is used as an umbrella term covering both investigations and court

proceedings that are pending in respect of the same offence or offences in multiple Member States against the same person (Art 3(a) of the Framework Decision). The goal is to be reached (solely) by setting specifications for direct consultation and information

exchange between the relevant authorities in each Member State. The authorities must, through direct consultation, attempt to reach agreement on an efficient solution that “avoid[s] the adverse consequences arising from parallel proceedings and [...] waste of time and resources of the competent authorities concerned”. The Framework Decision considers the concentration of proceedings in a single member state an example of an efficient solution, but states that “any other measure” aimed at the efficient and sensible conduct of proceedings, including dividing the offence into chronological slices, can be seen as having conflict-solving potential. The Council’s draft Framework Decision contained a catalogue of criteria for determining the Member State best-placed to carry out the prosecution [46], but it was stricken from the final version before passage (cf Art 15 of the draft: Criteria to determine the best placed jurisdiction 1. There shall be a general presumption in favour of conducting criminal proceedings at the jurisdiction of the Member State where most of the criminality has occurred which shall be the place where most of the factual conduct performed by the persons involved occurs. 2. Where the general presumption according to paragraph 1 does not apply due to the fact that there are other sufficiently significant factors for conducting the criminal proceedings, which strongly point in favour of a different jurisdiction, the competent authorities of Member States shall consider those additional factors in order to reach an agreement on the best placed jurisdiction. Those additional factors shall include, in particular, the following: location of the accused person or persons after an arrest and possibilities for securing their surrender or extradition to the other possible jurisdictions, nationality or residence of the accused persons, territory of a State where most of the damage was sustained, significant interests of victims, significant interests of accused persons, location of important evidence, protection of vulnerable or intimidated witnesses whose evidence is of importance to the proceedings in question, the residence of the most important witnesses and their ability to travel to the Member State where most of the criminality has occurred, stage of proceedings reached for the facts in question, existence of ongoing related proceedings, economy of the proceedings.) In cases where the Member States cannot reach consensus, Eurojust is to be called in to act within the bounds of its competencies (Art 12 of the Framework Decision).

2. The Framework Decision’s conflict-solving potential

The Framework Decision is disappointing. It does little to advance the Council’s stated goal of “maintaining and developing an area of freedom, security, and justice”. The entire architecture of the AFSJ seems to be based on the guiding principles of efficiency and efficacy. Information duties for the benefit of the accused, binding deadlines, and legal rights are guarantees that form the foundation of the rule of law, but this framework provides for opaque procedural arrangements between the prosecuting authorities of the Member States. Eurojust lacks even the simplest decision-making competence, though this would be urgently needed where there is no consensus between the Member States. Instead, we are told that “[n]o Member State should be obliged to waive or to exercise jurisdiction unless it wishes to do so”. Giving Eurojust this power would require new legislation [16, P. 60-62], but that is a step one must be willing to take.

Only time will tell whether the Framework Decision is at all suitable for preventing competence conflicts. But it is doubtful, not least because the obligation of prosecutors to seek contact with other Member States only arises when they have “reasonable grounds” to believe that parallel proceedings are running in respect of the same offence in another member state (Art 5(1) of the Framework Decision). Going forward, it will be critical to ensure that prosecuting authorities receive word of parallel proceedings in other Member States in a timely fashion. But that will only be feasible if prosecutions are increasingly reported in databases that can be accessed by prosecuting authorities in other Member States, creating entirely new data protection problems.

In the absence of a catalogue of criteria for determining which state should be responsible for prosecution, it is impossible to monitor the exercise of this discretion. Article 9 of the Framework Decision hints at criteria such as the location where the greatest damage is incurred; the residence of the suspect or accused; the interests of the accused, the victims, or the witnesses; the reliability of evidence; or possible delays in one forum or another. But Art 11 of the Framework Decision (“Procedure of Reaching Consensus”) states only that the prosecuting authorities must consider the “facts and merits of the case and all the factors which they consider to be relevant”. In criminal proceedings, this is obvious to the point of banality. It is certainly not something that one needs a Framework Decision in order to set out. The EU is based upon the rule of law (cf Preamble and Art 2 TEU). But the Framework Decision contains no procedural provisions for arriving at consent that are any more specific than the general principle of the rule of law would require. That is its real defect.

But the Framework Decision does at least lay out a path that addresses its goal and may serve as a basis for future models for solving jurisdictional conflicts: “In the common area of freedom, security and justice, the principle of mandatory prosecution, governing the law of procedure in several Member States, should be understood and applied in a way that it is deemed to be fulfilled when any Member State ensures the criminal prosecution of a particular criminal offence.” Whether one wants to begin the rollback of national jurisdictional rules before or after the commission of the offence, both possibilities offer ways to prevent multiple prosecutions of the same offence.

III. The immediate goal

The immediate goal of future legislation on jurisdictional conflicts should be to correct the deficiencies of the Framework Decision. One possibility for doing so has been provided by Hecker, who has developed a catalogue of criteria for determining criminal jurisdiction. He also proposes an abuse-prevention clause that would hinder “forum shopping” to the detriment of the accused. In cases where consensus cannot be reached, the decision on forum should rest with Eurojust, whose decisions in turn are reviewable by the CJEU [16].

Building on these recommendations, the European Working Group has, in cooperation with the Centre for European and International Criminal Legal Studies (ZEIS), developed a model that can serve as the basis for a future regulatory mechanism [37]:

The agreed jurisdiction model

I. Basis

1. The goal of the agreed jurisdiction model is to interface with and expand on the rules in the framework decision on the avoidance and resolution of jurisdictional conflicts in criminal proceedings, increasing the regulatory framework’s resistance to manipulation.

2. The further development of the existing legal instruments at EU level is possible without making changes to the European constitution (the TEU and the TFEU). The dogmatic and technically difficult and politically impossible harmonization of national criminal jurisdictional laws, which is anyway limited to specific offences (Art 83(1) TFEU), will not be necessary.

3. This concept does not assign jurisdiction until after the offence has been committed, but in doing so, it respects the primary and legitimate right of the accused not to be prosecuted in multiple countries for the same offence.

II. Draft directive

The framework decision 2009/948/JHA of 30 November 2009 should be changed by issuing a directive under Art 82(1)(2)(b) TFEU through the Council and the Parliament as follows:

Proposal for a directive amending the framework decision on the avoidance and resolution of jurisdictional conflicts in criminal proceedings of 30 November 2009 [2009] OJ L 328/42

Current rule:

Article 10

Obligation to enter into direct consultations

1. When it is established that parallel proceedings exist, the competent authorities of the Member States concerned shall enter into direct consultations in order to reach consensus on any effective solution aimed at avoiding the adverse consequences arising from such parallel proceedings, which may, where appropriate, lead to the concentration of the criminal proceedings in one Member State.

2. As long as the direct consultations are being conducted, the competent authorities concerned shall inform each other of any important procedural measures which they have taken in the proceedings.

3. In the course of the direct consultations, competent authorities involved in those consultations shall whenever reasonably possible reply to requests for information emanating from other competent authorities that are involved in those consultations. However, when a competent authority is requested by another competent authority to provide specific information which could harm essential national security interests or could jeopardise the safety of individuals, it shall not be required to provide that information.

Article 11

Procedure of reaching consensus

When the competent authorities of Member States enter into direct consultations on a case in order to reach consensus in accordance with Article 10, they shall consider the facts and merits of the case and all the factors which they consider to be relevant.

Proposed Article 12:

Objective of the consultations

(1) The general objective of the consultations concerning which Member State is best placed to conduct the criminal proceedings is to achieve an agreement that the national prosecuting authorities of a single Member State will conduct the proceedings concerning every part of the criminal conduct over which the prosecuting authorities of more than one Member State might have jurisdiction.

(2) If proceedings in a Member State are ongoing in respect of criminal conduct that is discovered to be related to the conduct over which consultations are being conducted under (1) above, but the conduct is not the same incident, or it is not practically possible, particularly because of the high degree of complexity of the facts or the large number of defendants,

to conduct all of the criminal proceedings in a single Member State, it may prove more appropriate to conduct in multiple Member States parallel criminal proceedings which address different conduct or different persons.

Proposed Article 13:

Criteria for determining the Member State to serve as forum

(1) The Member State in which the criminal conduct was substantially committed is presumed to be the best forum for the criminal proceedings in respect of that criminal conduct. This is the Member State in which the accused committed the substantial part of the criminal acts or in which the substantial part of the criminal consequences were brought about.

(2) If the presumption in paragraph 1 above is not applicable because additional important factors weigh on the decision to conduct criminal proceedings that speak for the choice of another Member State as forum, the responsible authorities of the relevant Member States must respect these factors in coming to an agreement about the state best suited to serve as the forum for the criminal proceedings. These additional factors include:

– The territory of a Member State in which the most harm has been inflicted, taking into account the number of victims, property damage, and further serious consequences or the degree of upset of the local population;

– The citizenship and residency of the accused;

– Significant interests of the victims;

– The location of important evidence;

– The protection of endangered or intimidated witnesses whose testimony is important for the proceedings;

– The residence of the most important witnesses and their ability to travel to the Member States in which the offence was primarily committed;

– The stage reached by proceedings already running in respect of the offence;

– Whether proceedings are already running in respect of the same;

– Procedural economy.

Comment — A catalogue of criteria should be included in the directive that enables the competent authorities in the Member States involved to decide which state will serve as the forum for both the investigation and the trial in the case at hand. It is advisable to include the list in the form of an ordered hierarchy that still leaves enough room for flexible decisions in individual cases. The traditional components of criminal jurisdictional law should be combined with qualitative criteria. The proposed concept is as follows:

1. General presumption of the territoriality principle with respect to the location of the conduct and the criminal consequences; the presumption can be rebutted by reference to the issues below if they are more important or should be given more weight in a particular case. There is no need to single out priority for a national security principle, since for attacks on a Member State or its constitutional order, the territoriality principle applies. If multiple countries are subjected by a political crime to a national security threat, the substantive criteria below («focus of the offence») will assist in making a proper determination.

2. Subsidiary to No. 1: the active and passive personality principles, with the active taking priority over the passive.

The deciding factor is where the «centre» of the offence is situated. The factors considered should be the following:

– Where was the most harm suffered? (number of victims, property damage, and further serious consequences or the degree of upset of the local population, etc.);

– interests of the victims;

– interests of the accused (working language of the court, resocialization prospects)

– location of important evidence;

– protection of endangered or intimidated witnesses whose testimony is critical for the proceedings;

– the residence of the most important witnesses and their ability to travel to the Member State where the offence was principally committed;

– procedural economy (whether parallel proceedings are ongoing and what stage they have reached; the ability to ensure the accused’s appearance)

The model also permits «mixed solutions» — the proceedings can be carried out in Member State A and sentence enforced in Member State B.

The added value of a criteria catalogue is in additional transparency of the jurisdiction decision as well as the guarantee of judiciability (proper, non-arbitrary exercise of discretion).

Whether the person is capable of standing trial is always a matter of the substantive law of the state where proceedings are conducted. The application of foreign law – unknown in practice and democratically extremely problematic – is ruled out, respecting the principle of forseeability of sanction. This elementary principle of criminal law merely demands that offenders be able to foresee the punishability of their behaviour, and the conduct must be punishable at the time it is committed. It does not mean that it must be certain at the time of the offence which of multiple possible states will ultimately conduct the proceedings. Every offender can and generally does know that committing cross-border offences or offences with a significant foreign element can lead to prosecution in another one of the countries involved.

(3) The determination as to forum is void if it constitutes abuse of process.

Comment: A generally-formulated anti-abuse clause should be included, in which it is explicitly stated that an abusive forum assignment is a nullity. Interpretation of the clause will then be a matter for the ECJ. The recitations to the directive can make clear that the decision on jurisdiction is presumed not to be abusive when prosecution is only possible in one state (because the limitation period has run in all the others or because one state has issued a pardon or will not admit evidence, etc.). The key factor here is whether the criteria listed in the directive have been properly taken into consideration in exercising the discretion it grants. The level of arbitrariness giving rise to a void decision on forum is typically a result of a desire to deliberately disadvantage the accused. If the Member State forum is determined solely on the basis of a desire to disadvantage the accused, it will always constitute abuse of process. One example of this might be a group of Romanian offenders, five adults and two 17-year-olds, arrested for trafficking in stolen cars in Germany. While the adults are prosecuted in Germany, the 17-year-olds are sent to Romania in order to get around German sentences for youthful offenders, which are seen as too lenient.

Proposed Article 14:

Involvement of Eurojust

(1) National prosecuting authorities are free at any stage of internal criminal proceedings:

a) to consult Eurojust;

b) to decide to involve Eurojust in specific cases in which there is a question as to which Member State would be best suited to conduct a criminal proceeding.

(2) If multiple national prosecuting authorities cannot reach an agreement as to the Member State best placed to serve as the forum of criminal proceedings arising out of a given incident, they are required to involve Eurojust. The Member States involved must inform Eurojust of the reasons that agreement has not been reached.

(3) In cases involving paragraph 1(b) and 2, Eurojust must issue a quick and binding decision under the criteria in Article 13 as to the Member State which will serve as the forum of the criminal proceedings.

Comment: This proposal takes into account at every stage the accused’s right to a speedy trial. This is all the more important in these cases since the proceedings involved here will typically involve offenders in custody and be subject to the strict

jurisprudence of the ECtHR and, in Germany, the Bundesverfassungsgericht.

Proposed Article 15:

Judicial review

(1) The Member States affected by the decision under Art 14(3) may apply for judicial review within one week of the issuance of the decision.

(2) The accused person or persons affected by the decision under Art 14(3) may apply for judicial review within one week of the issuance of the decision. The accused only has standing to apply for review of the decision on the basis that the Art 13 criterion of his individual rights was not sufficiently respected in the making of the decision.

(3) If the court determines that discretion under Art 14(3) was improperly exercised, it will vacate the decision and return the matter to Eurojust to be redecided. The Member States and the accused person affected by the subsequent decision may apply for judicial review within one week of its issuance. The court will then issue a final decision in the matter.

Comment: See also Part 3 on procedural questions.

This proposal immediately improves the situation of the accused. It may, however, make the underlying problem worse, at least initially, since the coordination between prosecuting authorities still happens after the offence is committed. The tug-of-war over the accused is subjected to rules, but the source of the dispute is not addressed. Until the authorities come to an agreement, it will still be the case that parallel proceedings arise and that the accused lacks the desirable certainty about where and under what laws he will face prosecution and punishment. The European Working Group’s remit included the future of European legal developments, however, and so they developed a further model with which it is possible to determine where jurisdiction will lie, what law will apply, and which state will be tasked with the prosecution before the offence is committed.

IV. The long-term goal

In future, it must be possible to determine within the bounds of the EU which state is tasked with prosecution and punishment. This is only possible if national jurisdictional rules recede into the background and the principles of public international law take on a more primary role.

B. The statutory determination model

I. Basis

1. The objective of the statutory determination model is to solve competition problems in cases where the criminal proceedings relate to several different countries, resulting in the clearest possible assignment of which Member State is the appropriate forum. Reaching this objective requires limiting the scope of the potential interfaces without creating gaps in jurisdiction or punishability.

2. Going forward, every Member State must continue to have the power to begin an investigation when there is suspicion of criminal activity. The next step is to use the proposed regulatory mechanism to determine which state is ultimately responsible for carrying out the prosecution [32].

3. The determination as to responsibility also determines which Member State will serve as the forum for trial, sentencing, and appeal. It determines which national law will apply, both procedurally and substantively [32].

4. This link is critical to avoid situations in which a trial takes place in one Member State as the result of investigations in another [34]. Legal problems, e.g. of transferability of evidence, and practical problems would be built into such a model.

5. Up to now, the principle has been that punishability was determined by jurisdiction, which was in turn determined by substantive law. Broad jurisdiction was the result of the widening scope of substantive law rules on punishability. This principle appears to rest on a wide foundation of comparative law (Only in Denmark were we able to find an example of a system that has decoupled jurisdiction from the applicability of substantive law).

6. Currently, it is only possible to tie responsibility for prosecution to substantive law as a matter of pure hypothesis. Prosecutorial authorities investigate when suspicion arises, and suspicion logically requires the presumption that the alleged offence is governed by national law. Proof of the offence and the perpetrator, however, is only achieved as a result of the trial: suspicion gives rise to a presumption that national law is applicable even when it later becomes clear that the conduct in question was not subject to domestic criminal sanction. In these cases, however, the collection of evidence is not retroactively improper. Instead, there is a limitation on further prosecution. Nor is the collection of evidence improper when it is done through legal channels at the request of another Member State.

7. The establishment of a model for concentrating prosecutorial responsibility in one Member State does not reverse the principle of ne bis in idem. Transferring a criminal proceeding to the responsible state does not constitute a judgment on the merits of the case in the surrendering state. The ECJ made this determination in the Miraglia [44] case, ruling that there was no presumption of a judgment on the merits in one Member State when that state halts proceedings because its prosecutorial authorities have determined that proceedings are ongoing in another Member State. The opposite result would have led to a reversal of ne bis in idem.

8. The guiding principle of this model is a binding decision as to which law is applicable if aspects of the offence span more than one Member State.

9. In order to optimize forseeability and therefore freedom, justice, and security, enforcement powers are largely determined before the offence is even committed. The ability to make a decision as to forum should be understood as a means of optimization, avoiding difficult-to-challenge informal arrangements among the police.

10. Optimization can be made possible by limiting the factors able to be considered in making the decision on forum. The applicable substantive law that comes with the jurisdictional choice represents an inherent and critical limitation on the punishability of the accused. It is possible to achieve this without interfering in the jurisdictional provisions of Member States’ criminal law.

11. The criteria in a “statutory determination model” anchored in public international law that then lead to the applicability of a particular substantive law follow the competency distribution principle. This principle requires that “states determine the responsibility for the prosecution of offences with a sufficient degree of certainty, respecting the principles of justice and fitness for purpose, that surrendering jurisdiction limits the overlap of criminal law as much as possible and avoids multiple parallel prosecutions.”[25]

12. The provisions of public international law concerning criminal juris diction do not give rise to any hierarchy. Ordinarily, the territoriality principle ranks first in the national context. The territoriality principle gives rise to the concepts of “location of conduct” and “location of consequences” (the ‘ubiquity thesis’).

13. The territoriality principle is thus the central factor in the decision on jurisdiction. Between the location of conduct and the location of (criminal) consequences, the location of the conduct weighs more.

II. Constructing legal provisions

Statutorily determined jurisdiction must be set out in legal provisions [34]. The statutory determination model comes from the tradition of nullum crimen sine lege: by tying the exercise of state authority to abstract laws, citizens are protected from authoritarian incursions into their rights [28, ch 5, para 19].

Proposed directive on the avoidance of jurisdictional conflicts in criminal proceedings

Article 1

(1) If it is possible for more than one Member State to prosecute a given offence, the prosecution will be conducted by the Member State within whose territory the accused committed the criminal conduct or, in the cases of omissions, in whose territory he was obligated to have acted.

Comment: It was made clear in the comparative-law investigation that the territoriality principle is to be given priority above other considerations. But it also became clear that the discrete consideration of the location of the conduct and the location of the criminal consequences could lead to jurisdictional conflicts. The location of criminal conduct is therefore the starting point for assigning jurisdiction. Cases of attempt in particular require focusing on the location of the conduct.

(2) If the accused acted within the territory of multiple Member States, jurisdiction lies with the state in which the criminal consequences also arose.

Comment: in cases where the criminal conduct spans multiple Member States, the location of the criminal consequences is subsidiarily decisive. As part of the territoriality principle, the location of the consequences is only of secondary importance – it is never itself decisive of the jurisdiction question.

(3) If the criminal conduct spans multiple Member States and the location of the criminal consequences is not one of the Member States where criminal conduct was also committed, proceedings will be conducted in the jurisdiction where the accused has his primary residence, or, alternatively, in which he has his usual residence, as long as it is one of the jurisdictions in which criminal conduct was committed (Schünemann [34] does not account for this situation).

Comment: Art 1(3) catches situations in which criminal conduct spans multiple Member States, but jurisdiction cannot be decided under Art 1(2) because none of the conduct took place in a jurisdiction where the consequences were also felt. This provision provides, like Art 1(2), a mechanism for deciding between multiple competing jurisdictions. It needs a further criterion, however, for which the domicile is a reasonable choice.

It probably does not represent a principle of public international law itself, but it is not problematic to use it as the basis of an agreement between the Member States. Furthermore, the connection between a legal system and its addressees in modern systems is generally tied to a person’s settlement in a particular country. Residency is ultimately easy to determine, and can often be the location of important evidence. This competency rule brings with it court proceedings in the place with which the accused is familiar and whose law, culture, and language

he knows.

(4) If the criminal conduct and its consequences both span multiple Member States, paragraph (3) applies accordingly.

Comment: This provision closes the loophole that arises when the consequences also span multiple Member States. Here, too, residency is brought in as decisive.

(5) If the conduct spans multiple Member States, the criminal consequences are not felt in any of these states, and the primary or usual residence of the accused does not fall within any of them, proceedings will be conducted in the Member State in which the greatest amount of important evidence is located.

Comment: Art 1(5) is the last chance to determine jurisdiction by tacking on an additional criterion. It only operates when there is no other means for assigning jurisdiction to a particular Member State. But paragraph 5 works against the fundamental conduct element of the territorial principle in paragraph 1. Assignment of jurisdiction to the Member State in which the most important evidence is located is only possible in concert with the location of the criminal conduct. For lack of other criteria, it seems unavoidable to focus on the state containing the most “important evidence”. The content of this term will probably be influenced primarily by Eurojust: since it collects all the information, it will necessarily also have the bases for a decision.

At this point it becomes clear that the statutory determination model relies on an agreement between the Member States based on the principle of competency distribution as to which state is responsible for the prosecution. The principles of public international law in play here are merely indications of which cases are currently unproblematic. It is open to the states to agree other criteria.

Article 2

If proceedings are to be carried out against multiple defendants who have their primary or usual residences in different Member States and if jurisdiction cannot be determined under Art 1(1) or 1(2), the Member State with jurisdiction is the one in which the greatest amount of important evidence is located.

Comment: It is difficult to assign jurisdiction in cases that involve multiple offenders, especially with gang or organized-crime characteristics. Attempting to determine the competent state for each offender individually under Art 1 would lead to cumulative proceedings and possibly even fights over evidence. Furthermore, it cannot be expected that these proceedings could be conducted quickly. Art 2 therefore provides that in cases where jurisdiction cannot be determined by Art 1(1) and 1(2) and where the accused have their residencies across multiple Member States, jurisdiction is assigned to the Member State in which the most important evidence is located. Article 2 represents the most flexibility in the jurisdiction decision.

Article 3

In cases where the assignment of jurisdiction under Art 1 and 2 produces a result adverse to the sovereignty interests of a Member State that could exercise jurisdiction under Art 1(1), then this state has jurisdiction.

Comment: Prosecutions of attacks on its own sovereignty is a legitimate interest of every state. The defence of the institutions of state is one of the basic conditions of the maintenance of public order. From a comparative-law perspective, the importance of national security is clear. Competition between multiple states here should be excluded in principle, since national criminal law generally does not address attacks on the integrity of other states. But cases are thinkable in which an offence is committed from outside a state that nonetheless constitutes an attack on its security. Assigning jurisdiction to the territorial state, which in such cases would have a lesser interest in prosecution, does not seem sensible.

Article 4

The state with jurisdiction conducts the entire course of proceedings according to its own law.

Comment: Assigning jurisdiction means that the entire course of proceedings – investigation, trial, and appeal – is conducted only in the state with jurisdiction. That state applies only its own criminal and criminal procedural law. Investigations conducted abroad are done through the normal international assistance channels at the request of the investigating state. The determination of jurisdiction is also the determination of which state’s law is to be applied. Until jurisdiction is decided, it rests with any state that could lay claim to it.

Article 5

The criminal proceedings may not result in a sentence under the law of the state whose jurisdiction is determined by Art 1 or 2 that is more severe than the maximum sentence possible under the law of any state in which the criminal conduct took place.

Comment: Art 5 requires the sentencing court to engage in a comparison for the defendant’s benefit. It must survey the maximum possible sentences for the offence in question according to the laws of all of the states in which the criminal conduct took place. Only states that served as conduct locations are considered, because it is only when criminal conduct took place in another state that the offence was committed abroad from the perspective of the sentencing state. There is some comparative law support for this principle of lex mitior in jurisdictional law for offences committed abroad. This limited lex mitior clause is a concession to legal systems that currently feature the principle. It does not apply to cases covered by Art 3, where national security trumps the comparative sentence.

Article 6

If a state declines to prosecute or fails to carry out criminal proceedings, jurisdiction is to be decided again under Art 1 ff, excluding that state.

Comment: This provision handles negative competency conflicts. If a state rejects jurisdiction or accepts it and allows the process to “idle”, jurisdiction has to be allocated anew. It makes little sense to compel a state to carry out proceedings against its will.

Article 7

(1) Eurojust decides which state has jurisdiction under Art 1-3.

(2) Every state that could assert jurisdiction is to be given an opportunity to be heard.

(3) The accused is to be given the right to make representations.

(4) The accused’s counsel must be informed of the involvement of Eurojust in the proceedings.

(5) Eurojust must make its decision as to jurisdiction without undue delay.

Article 8

(1) The Member States affected by the decision under Art 7(1) may apply for judicial review within one week of the issuance of the decision.

(2) The accused person or persons affected by the decision under Art 7(1) may apply for judicial review within one week of the issuance of the decision.

(3) If the court determines that Eurojust decided incorrectly under Art 7(1), it will vacate the decision and return the matter to Eurojust to be redecided. The Member States and the accused person affected by the subsequent decision may apply for judicial review within one week of its issuance. The court will then issue a final decision in the matter.

Comment: see the procedural discussion in part 3.

The statutory determination model is supplemented by the provisions on the European Arrest Warrant. As a result, extradition can be refused on the basis of a lack of parallel punishability if the case does not fall into one of the 32 exempt groups of offences. A Member State on whose territory conduct was committed that is not criminal in that state may be able to reject extradition. There is no jurisdictional conflict here, since such a state cannot assert criminal jurisdiction and therefore cannot compete for it with other states.

D. Summary

The European Union has taken on one of the most urgent problems in the field of cooperation in criminal matters. That it has taken so long is probably more a result of a lack of consensus in the Council about clear criteria for conferring competence and less a result of insufficient creativity. Individual attempts by Member States to revise their jurisdiction statutes will not solve the problem. Only European guidelines and, at first, with respect to harmonized definitions of offences can a certainty-oriented model for preventing and settling jurisdictional conflicts be developed. The role of the principles of public international law in this model has been made clear by our two proposals [7, 336]. In future, two separate regulatory issues will have to be separated from one another: (1) the question of which criminal law is applicable and (2) of which state is responsible for carrying out the investigation.

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