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Criminal proceedings: conflicts of jurisdiction and the ne bis in idem principle (Green Paper)
Through this Green Paper the European Commission is launching a wide-ranging consultation of interested parties on issues of conflicts of jurisdiction between the courts of the Member States in criminal matters. The Green Paper also looks at the ne bis in idem* principle.
Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings [COM(2005) 696 - Not published in the Official Journal].
The Green Paper launches a process of reflection on conflicts of jurisdiction between the courts of the Member States in criminal matters in the light of the ne bis in idem principle. To solve conflicts of jurisdiction between national courts, the Commission outlines the possibilities for the creation of a mechanism for allocating cases to an appropriate jurisdiction. If prosecutions were concentrated in a single jurisdiction, those concerned would not run the risk of being tried several times for the same offence in different States. The Commission considers that such a mechanism would complement the principle of mutual recognition.
ALLOCATING CASES TO A SPECIFIC MEMBER STATE
To allocate cases to the right Member States, the new mechanism would consist of the following stages:
- Identifying and informing "interested parties". A Member State which has initiated or is about to initiate a criminal prosecution ("initiating State") in a case which demonstrates significant links to another Member State must inform the competent authorities of that other Member State. It could be envisaged that this information should be provided within a fixed period of time. If no Member State expresses an interest in prosecuting the case in question, the initiating State could continue with the prosecution of the case without further consultation, unless new facts change the picture.
- Consultation/discussion. If two or more Member States are interested in prosecuting the same case, their respective competent authorities should be able to examine together the question of the "best place" to prosecute the case. An option would be to create a duty to enter into discussions. Direct contacts between them would seem to be the most efficient means of discussion. If need be, the Member States could ask for the assistance of Eurojust and/or other Union assistance mechanisms.
- Dispute settlement. Where an agreement cannot be easily found, Eurojust or a newly-established mechanism for dispute resolution could help the Member States concerned to reach a voluntary agreement in consideration of the interests involved using the criteria outlined in the Green Paper. The Commission also looks at the possibility of a body at EU level being empowered to take a binding decision as to the most appropriate jurisdiction.
Establishing a mechanism for allocating cases will raise the need for effective information exchanges between the relevant authorities in the Member States. Once they become aware that proceedings are ongoing in another Member State, the prosecuting authorities of a Member State should have the ability to halt an existing prosecution. The Commission acknowledges that that could raise problems for the legal order of Member States which adhere to the mandatory prosecution principle, in other words where the authorities have a constitutional duty to prosecute every crime which falls within their competence *. It proposes that an exception to the application of this principle could be provided for, since it can validly be argued that in a common area of freedom, security and justice this principle is satisfied when another Member State prosecutes such a case.
Selecting the Member State best placed to prosecute
During the pre-trial stage, the suggested mechanism focuses on consultation among the competent prosecuting authorities. Discussing jurisdiction issues with the individuals concerned might often reveal facts which could jeopardise a prosecution or affect the rights and interests of victims and witnesses. Whether such a risk is present in a specific case could be left to the national courts to be decided.
Unlike in the pre-trial phase, at the trial phase a national court which receives an accusation of an indictment usually examines whether it has jurisdiction to try the case. The Commission is proposing that the Member State should be required to examine whether it is best placed to prosecute. Judicial review would then amount solely to adjudication on whether the principles of reasonableness and due process have been respected.
A choice of jurisdiction could thus be set aside by the competent tribunal if it found that the choice made was arbitrary on the basis of doctrines known to the national legal order of the Member States, such as abuse of process. Questions of interpretation of Union-wide rules, including legislation on the proposed procedural mechanism and the criteria for the choice of jurisdiction, could be presented to the European Court of Justice (ECJ) for preliminary rulings CJEC).
Alongside the allocation mechanism, the Commission is proposing an EU provision that would oblige Member States to concentrate proceedings on the same case in one "leading" jurisdiction. The criteria for determining the leading State would include territoriality, victims' interests, criteria related to efficiency of the proceedings, etc. The prioritisation rule could be that, when a prosecution is brought in a national court, the other Member States must halt or suspend ongoing proceedings.
The individuals concerned must be able to apply for a judicial review of decisions allocating cases to Member States, particularly those allocated to a specific jurisdiction through a binding agreement, because such agreements would fetter the ability of the relevant Member States to denounce the jurisdiction allocation at a later stage. The question of judicial review in situations where there are no binding agreements could be left to the discretion of the Member States and their national laws. Judicial review would be indispensable if the power to take decisions were conferred on an EU body
RELAUNCHING THE DEBATE ON THE NE BIS IN IDEM PRINCIPLE
Articles 54 to 58 of the Convention implementing the Schengen Agreement (CISA) [Official Journal L 239 of 22. 9.2000] are devoted to the ne bis in idem principle. The principle is thus currently binding throughout the Schengen area, in the ten EU Member States which acceded in 2004, in Iceland and Norway, in the United Kingdom, and shortly also in Ireland.
If a mechanism for allocating jurisdiction can be established, discussions on ne bis in idem could be re-launched. In this Green Paper the Commission addresses the following questions:
- Need to clarify certain elements and definitions. Consideration should be given, for instance, to the types of decision which can have a ne bis in idem effect, and/or what is to be understood under idem or "same facts".
- Application of the principle. The principle currently applies only where the imposed penalty "has been enforced, is actually in the process of being enforced or can no longer be enforced". This condition was justified in a traditional system of mutual assistance, but it is questionable whether it is still needed in an area of freedom, security and justice, where cross-border enforcement now takes place through EU mutual recognition instruments.
- Current possibilities for derogations from the principle. The Commission sees no further need for exception. Currently, Article 55 CISA enables Member States to provide for exceptions from the ne bis in idem principle where for example the acts to which the foreign judgment relates constitute an offence against national security.
The measures proposed in the Green Paper would also enable the Union to reduce the number of grounds for non-enforcement of judicial decisions by other Member States which are currently provided for by EU instruments. Some of these grounds for non-enforcement could be maintained, such as the fact that an act took place on the territory of the Member State of enforcement.
The Hellenic Republic presented an initiative with a view to adopting a Council Framework Decision concerning the application of the ne bis in idem principle [Official Journal C100 of 26.4.2003]. It provided for definitions of the "same facts" (idem), the principle that penalties are not cumulative, exchanges between competent authorities, etc. The Council has failed to reach agreement on the Greek initiative.
Application of the principle raises a number of questions of interpretation on account of the divergent rules applying nationally and internationally. In the legal systems of some Member States the principle is recognised only in the national context, i.e. vertically in the country's own criminal procedure. Articles 54 to 57 of the CISA provide for the ne bis in idem principle to apply in the international context, i.e. horizontally.
The ne bis in idem principle is enshrined in Article 50 of the Charter of Fundamental Rights of the EU, which extends the principle throughout Union territory. This represents considerable progress over Protocol 7 to the European Human Rights Convention (ECHR). The Court of Justice of the European Communities considered the scope of the principle in two important judgments based on Schengen (C-385/01 Gözütok and Brügge; C-469/03 Miraglia). The principle is recognised by all legal systems that are concerned to secure protection for fundamental rights.
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