[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 23.12.2005

SEC(2005) 1767

COMMISSION STAFF WORKING DOCUMENT

Annex to theGREEN PAPEROn Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings {COM(2005) 696 final}

TABLE OF CONTENTS

PART I: Introduction – Purpose of the Green Paper 4

1. Introduction 4

2. Purpose 6

PART II: Preventing and Resolving Conflicts of Jurisdiction 8

3. Previous attempts 8

4. The necessary additions to the existing legal framework 9

5. Procedural Arrangements for Determining Jurisdiction 12

5.1. Pre-conditions 13

5.2. Creating a "Duty to inform" 17

5.3. Creating a "Duty to enter into Discussions" 19

5.4. The characteristics and the "Steps" of the suggested mechanism 20

5.5. The legal effect of the allocation of a case to the most appropriate jurisdiction 25

6. The role of individuals and judicial review 26

7. Concentration of Proceedings 31

8. Third countries 34

9. Criteria for Determining Jurisdiction 35

9.1. Territoriality 36

9.2. Criteria related to the suspect or defendant 37

9.3. Victims’ interests 38

9.4. Criteria related to State interests 39

9.5. Criteria related to the efficiency and rapidity of the proceedings 40

9.6. Factors which should not be considered relevant 40

10. Prioritisation, discretion and judicial review 41

PART III: CLARIFYING THE EXISTING LEGAL FRAMEWORK ON NE BIS IN IDEM 44

11. Analysis of The Existing Rules on Ne Bis In Idem 44

11.1. International instruments and the EU Charter of Fundamental rights 44

11.2. The trans-national Ne bis in idem EU principe. 45

11.3. The case-law of the ECJ on ne bis in idem 48

11.4. Previous attempts for a revision 51

11.5. Possible revision of the existing legal framework on the EU wide ne bis in idem 51

11.6. Third countries 61

PART IV: FURTHER OPTIONS AND CONCLUSIONS 63

12. Further Possible measures 63

12.1. Revising grounds for non-execution in other mutual recognition instruments 63

12.2. The applicable criminal law 64

13. Concluding Remarks 65

ANNEX PART V: Appendix with relevant provisions from EU and International Instruments – Initiatives 67

A. Provisions on ne bis in idem in International and EU instruments 67

B. EU Provisions on conflicts of jurisdiction (Including Pending Initiatives) 73

C. EU and international rules on coordination of prosecutions 90

PART I: Introduction – Purpose of the Green Paper

INTRODUCTION

According to Article 31(1)(d) of the Treaty on European Union (TEU), common action on judicial cooperation in criminal matters shall include “preventing conflicts of jurisdiction between Member States”. This paper aims to launch an EU wide consultation on the line that a future EU legislative initiative should take in addressing the problem of 'conflicts of jurisdiction' in criminal proceedings. In this paper, the term 'conflict of jurisdiction' will refer to constellations where two or more Member States have initiated or are likely to initiate their own parallel prosecution for the same case. These are sometimes called “positive” conflicts, as distinct from constellations where no Member State has established jurisdiction or is willing to exercise it (“negative conflicts”). Since, so far, the issue of “positive” conflicts has received less attention; this paper focuses on “positive” conflicts of jurisdiction. It should be noted, that the term 'criminal proceedings', in its broad sense, can include all stages of a criminal case. In other words, it can include the investigation, prosecution and the trial stage of a case. However, this paper is only concerned with the question of parallel proceedings from the moment that criminal proceedings reach the prosecution phase. The question of parallel investigations thus falls outside the scope of this paper.

Currently, there are no binding rules at EU level which adequately deal with conflicts of jurisdiction in criminal matters. The current EU provisions on conflicts of jurisdiction neither require Member States to take concrete steps so that to avoid/solve conflicts of jurisdiction cases nor do they provide for a procedure/mechanism which would assist them in dealing with such questions. These rules merely provide that Member States shall cooperate in deciding which of them shall prosecute offenders when an offence falls within the jurisdiction of more than one Member State. Furthermore, these rules only apply within specific sectors of criminal law. As a result, when several Member States have criminal jurisdiction for the same case, their competent authorities are free to start respective prosecutions. This contrasts with the domestic level where national criminal laws usually prohibit parallel prosecutions on the same case.

Multiple prosecutions can affect the efficiency and duration of the respective proceedings. Duplication of work is almost unavoidable, and efficiency reasons may plead against multiple prosecutions even if the competent national authorities co-ordinate their work well. Moreover, multiple prosecutions can impose considerable additional burdens on the individuals involved. If there are several parallel prosecutions, defendants, victims and/or witnesses might have to be summoned and heard several times. As a consequence, the concerned individuals can be subjected to disproportionate restrictions as parallel or repeated national prosecutions can limit their freedom of movement and impair their rights and interests. They can also increase the costs and complexity of their defence and, last but not least, the psychological burdens coming along with criminal proceedings.

As said, at present, national authorities are allowed to start their own parallel prosecutions on the same cases. The only legal barrier is the principle of ne bis in idem , laid down in Articles 54-58 of the Convention Implementing the Schengen Agreement (CISA). However, this principle does not prevent conflicts of jurisdiction while parallel prosecutions are ongoing in two or more Member States; it can only come into play, by preventing a second prosecution on the same case, if a decision which bars a further prosecution ( res judicata ) has terminated the proceedings in a Member State. More importantly, without a system for allocating cases to an appropriate jurisdiction while proceedings are ongoing, ne bis in idem can lead to accidental or even arbitrary results: by giving preference to whichever jurisdiction can first take a final decision, its effects amount to a “first come first served” principle. The choice of jurisdiction is currently left to chance, and this seems to be the reason why the principle of ne bis in idem is still subject to several exceptions.

Since the question of which Member State prosecutes a case clearly affects both the rights and interests of the concerned individuals (defendants and victims) and the efficiency of the proceedings, it should not be left to fortuitous circumstances. This is particularly important since, according to the so-called lex fori rule in international criminal law, the jurisdiction under which a case will be dealt with determines not only the procedural law to be applied but also the substantive criminal law under which the merits of the case will be decided on.[1] In view of these realities, it could certainly be argued that in the European area of freedom, security and justice (Articles 2 and 29 TEU) it is both desirable and appropriate to limit and/or restrict the multiplication of prosecutions.

This Green Paper analyses the current legal situation regarding “positive” conflicts of jurisdiction and presents possible courses of action in order to meet the mandate of Article 31(1) (d) TEU. With this Paper, the Commission intends to launch an EU wide discussion on the type of measures that could be taken in the Union in order to prevent multiple prosecutions for the same cases; primarily, concerning an appropriate procedure and the substantive criteria that could be put in place so that to facilitate a balanced choice of jurisdiction within the common EU area of freedom, security and justice.

In particular, the Commission analyses the possibilities for the creation of a mechanism which would facilitate the choice of the most appropriate jurisdiction to prosecute a case which raises issues of conflicts of jurisdiction. This analysis will examine issues such as mutual information and consultation on national proceedings, possible criteria and procedures for concentrating prosecutions in one “leading” Member State. The guiding principle should be that with the creation of an effective mechanism for choosing jurisdiction before any final decision is taken, ne bis in idem would not need to come into play. The principle of ne bis in idem would only need to come into play in the situations where the envisaged mechanism fails to succeed in concentrating a prosecution in one jurisdiction.

In addition to such a mechanism, this Paper suggests possible courses of action in order to clarify the law with regard to the applicability and the role of the trans-national EU principle of ne bis in idem , which is contained in Articles 54-58 of the Convention Implementing the Schengen Agreement (CISA). These provisions incorporate to the national legal order of the Member States a ne bis in idem principle, which prevents a second prosecution, as a result of convictions and acquittals, (and other “final decisions” in general) which have been handed down in other EU Member States.

The Commission thereby further develops the relevant reflections in the Vienna Action Plan of 3.12.1998,[2] in its Communication on Mutual Recognition of 26.7.2000[3], and in the Mutual Recognition Programme of 29.11.2000.[4] In particular, point 2.3 of the latter states that it is “necessary to facilitate the settlement of conflicting claims to jurisdiction and, wherever possible, to avoid multiple prosecutions”; measure 11 suggests to establish an “instrument enabling criminal proceedings to be transferred to other Member States” and “criteria to help determine jurisdiction”, and measure 1 calls for a reconsideration of Articles 54 to 57 CISA.[5]

PURPOSE

On the whole, the suggested measures aim to contribute to the further developing of the Union as a common area of freedom, security and justice on the following three aspects:

Firstly, the measures outlined in this Paper would contribute to the reduction of the restrictions and burdens on individuals which result from multiple prosecutions. As stated above, multiple prosecutions for the same case can lead to excessive restrictions on individual rights; i.e. obligations to appear before or to report to various judicial authorities. From a European perspective, the multiplication of such restrictions and burdens could be regarded as disproportionate.

Secondly, the suggested approach would contribute to the further building of mutual trust among the Member States’ judicial authorities. It is clear that mutual trust is a crucial prerequisite for a sound application of the principle of mutual recognition of judicial decisions, which has been identified as a cornerstone of an area of freedom, security and justice[6]. Much has been achieved since the European Council of Tampere in 1999,[7] but experience shows that on certain points there is a need to increase mutual trust by means of further EU legislation. For instance, it would be easier for national authorities to fully recognise and enforce decisions originating from other Member States if there would be a mechanism which would ensure that final decisions would be taken in the most appropriate jurisdiction and if they would have the ability to provide input as regards their interests and/or findings on a case. In this context a good example is the principle of ne bis in idem , which should be understood as a consequence of the principle of mutual recognition.[8] It might sometimes be difficult for a Member State to accept that it may not prosecute a case because an authority in another Member State has taken a final decision, if this decision did not take into account its sensitive national interests in the case. This is probably one of the main reasons why currently many Member States insist on providing for various exceptions to ne bis in idem . As a further example one may refer to various grounds for non-execution of a European Arrest Warrant.[9] Perhaps some of these grounds could be waived if a mechanism for choosing the most appropriate jurisdiction would be established. As a result, with the creation of a mechanism which would facilitate choice of jurisdiction, the principle of mutual recognition could be applied more widely and more consistently.

Thirdly, the suggestions put forward in this paper endeavour to increase the efficiency and the swiftness of the national investigations and subsequent prosecutions on cases which could be prosecuted by two or more Member States. The respective competent national authorities would achieve more efficient use of their resources by concentrating the prosecutions in cross-border cases in one Member State. Under the current system, which allows parallel prosecutions, (at least for a considerable period of time) it seems unavoidable that their activities can overlap if they are prosecuting the same case. This can lead to duplication of tasks, even if good coordination between them takes place. More importantly, where coordination does not work well or when no coordination takes place the ability of the Member States to effectively punish the whole criminal conduct associated with cross-border crimes can even be endangered or become more difficult.

PART II: Preventing and Resolving Conflicts of Jurisdiction

PREVIOUS ATTEMPTS

In its Communication on mutual recognition of final decisions in criminal matters,[10] the Commission had brought up the idea for the laying down of jurisdiction rules which would have given exclusive jurisdiction to a single Member State, for each type of case. The feasibility of such an approach was examined in an expert meeting on 3.12.2001 based on reactions to a discussion paper which was disseminated among competent practitioners and experts including Eurojust. A large majority of the experts and practitioners pronounced that they were sceptical of such a system, and underlined the need for flexibility and the need for ensuring that the competent national authorities would have the ability to take into account the specific circumstances of each individual case when choosing the most appropriate forum for trying a case. As a preliminary conclusion, it can be said that it hardly seems feasible to set up a strict hierarchy of criteria for choosing jurisdiction, which would “automatically” lead to one Member State being identified as the best place to prosecute, and that rather a case-by-case approach is needed.

These findings have been confirmed both by a project under the EU Grotius programme[11] and a seminar organised by Eurojust in November 2003 with a view to Eurojust’s competence to issue requests on determining jurisdiction. In this respect, it should be noted that the Guidelines that have been laid down by Eurojust following the seminar it organised[12], which brought together practitioners and researchers from a large scope of legal systems, state that:

“Each case is unique and consequently any decision made on which jurisdiction is best placed to prosecute must be based on the facts and merits of each individual case. All the factors which are thought to be relevant must be considered.”

Subsequently, the focus of attention shifted to a Member State initiative by the Hellenic Republic, in February 2003, for a Framework Decision on ne bis in idem[13] . The initiative included an article on " lis pendens" . According to draft article 3, the competent authorities of the Member States having jurisdiction “ may, after consultation … choose the forum Member State to be given preference ”. As a consequence of this draft article, proceedings pending in other Member States shall be suspended. The proposal also contained certain criteria for determining jurisdiction. It listed the same determining factors as those in Article 9(2) of the Framework Decision on Terrorism, but without referring to a sequence among them as it is the case in the latter instrument or in the Framework Decision on attacks against information systems[14].

In general, the Greek initiative provided a good basis for discussing the form of a future instrument on the subject. However, Member States could not agree on a procedural mechanism and the criteria for determining jurisdiction, which are essential prerequisites for a possible agreement on a rule which shall provide for the suspension/halting of parallel proceedings in other Member States. In the Commission’s view, if the best placed jurisdiction would be determined by a “first come first served” rule, Member States would tend to reserve their right to prosecute the same case, as the “choice” of jurisdiction would thus not be transparent and could appear to be either accidental or biased, with the latter known as “forum shopping”. It may seem unacceptable for a Member State to waive its right to prosecute a case on this basis. Therefore, before, considering the approach that should be taken concerning the suspension/halting of parallel proceedings, it would be necessary to make suggestions on the procedure (mechanism) which could effectively facilitate a balanced choice of an appropriate forum for prosecuting a case which raises issues of conflicts of jurisdiction.

THE NECESSARY ADDITIONS TO THE EXISTING LEGAL FRAMEWORK

The objective of the envisaged procedure/mechanism should not only be to deal with conflicts when they appear. The procedure should be of such nature that it would encourage the avoidance of conflicts from coming into being. It could thus be argued, that a possible approach could be to put a halt to the further inciting on national jurisdiction rules, such as by limiting the jurisdiction of the Member States to the territoriality and/or the personality principle. However, there is a high risk that this route could encourage the creation of loopholes or safe havens for criminals. Such an approach would run contrary to the spirit that has been applied in many EU legal instruments where the ambition was to exclude “negative” conflicts.

In this respect, there are numerous EU instruments, dealing with specific types of criminality, which require Member States to establish their jurisdiction on certain offences beyond the mere territoriality principle. The relevant rules require only a minimum of jurisdiction and do not limit the criminal law powers of the Member States. In particular, this applies to the Convention on the Protection of the EC’s financial interests of 26 July 1995 (Article 4) and the Protocol thereto of 27 September 1996 (Article 6)[15], the Convention on the Fight against Corruption of 26 May 1997 (Article 7),[16] and the Framework Decisions

- on the protection of the Euro against counterfeiting (Article 7),[17]

- combating fraud and counterfeiting of non-cash means of payment (Article 9),[18]

- combating terrorism (Article 9),[19]

- combating trafficking in human beings (Article 6),[20]

- strengthening the penal framework to prevent the facilitation of unauthorised entry, transit and residence (Article 4), [21]

- combating corruption in the private sector (Article 7),[22]

- combating the sexual exploitation of children and child pornography (Article 8),[23]

- laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (Article 9).[24] And

- on attacks against information systems[25]

While these provisions aim at avoiding negative conflicts, the existing legal framework as regards the prevention and resolution of positive jurisdiction conflicts is rather “thin” (the relevant provisions can be found in the Annexed provisions). First of all, according to the European Convention on Transfer of Proceedings of 15 May 1972, elaborated by the Council of Europe (hereafter: “Transfer Convention”),[26] Contracting States can request each other to take proceedings under certain conditions (Articles 6 ff.). If a transfer request has been accepted, the requesting State can no longer prosecute (Article 21). Furthermore, Articles 30 ff. provide for consultation regarding offences which are not considered to be of a political or purely military nature: a Contracting State being aware of proceedings going on in another Contracting State in respect of the same offence, “shall consider whether it can either waive or suspend its own proceedings, or transfer them to the other State” (Article 30); if it does not, it shall postpone judgment on the merits for at least 30 days (Article 31).

However, this Convention has only entered into force in 11 Member States. More than 30 years after its elaboration, it does not seem very likely that all Member States will ratify it in the near future. Moreover, the Convention does not provide for a shared, common and multilateral procedure for determining jurisdiction. A transfer only comes about if a Contracting State decides to waive its right to prosecute and a second State is willing to take the case. In addition, the transfer procedure (comprising 24 Articles) is rather onerous and might not be appropriate for the EU common area of justice. Although it may be useful for all Member States to ratify the Convention, in the Commission’s view this could only be a partial step towards the objective of preventing and resolving jurisdiction conflicts.

A second relevant instrument is the Council Decision setting up Eurojust .[27] According to its Article 7(a), Eurojust may ask the competent authorities of the Member States,

“(i) to undertake an investigation or prosecution of specific acts;

(ii) to accept that one of them may be in a better position to undertake an investigation or to prosecute specific acts”.

While Article 7 applies to the Eurojust College as a whole, the national members of Eurojust may also ask the competent authorities “to consider” these measures (Article 6(a)). In principle, the competent authorities need to give reasons if they do not follow a reasoned request by the College (Article 8). The use of these provisions could facilitate and accelerate the process of determining jurisdiction and contribute, where necessary, to a settlement of disputes both on “positive” and “negative” jurisdiction conflicts. Thus, the Eurojust Decision can be an important element in a mechanism for determining a single jurisdiction. The Treaty Establishing a Constitution for Europe demonstrates that there is political willingness for giving an even more important role to Eurojust in settling conflicts of jurisdiction. Article III-273(1)(c) provides that the tasks of Eurojust may include “resolution of conflicts of jurisdiction”. This could provide a basis for using Eurojust in settling conflicts of jurisdiction under mechanisms established pursuant to Article III-270(1)(b) of the Treaty Establishing a Constitution for Europe .

However, under the current legal framework, Eurojust could not suggest a solution for every conflict of jurisdiction which arises among the Member States. Article 4(1) of the Council Decision setting up Eurojust limits its competence to serious crime, particularly as regards certain types of offences. Therefore, the referral of every such conflict to Eurojust would require a significant extension of Eurojust’s capacity. In the light of the subsidiarity principle one might rather seek a decentralised solution, especially in cases where the “EU dimension” is not very strong (both regarding the severity of the crime and the number of Member States involved).

As regards specific types of criminality , EU criminal law obliges the Member States or their authorities to cooperate with each other with the purpose of coming to a decision as to the appropriate jurisdiction under which a concrete case should be dealt with. This is the case for Article 6(2) of the Convention on the Protection of the EC’s Financial Interests and Article 9(2) of the EU Corruption Convention[28], Article 4(2) of the Joint Action on Criminal Organisations,[29]Article 7(3) of the Framework Decision on Euro Counterfeiting, Article 9(2) on the Framework Decision on combating Terrorism and Article 10(4) of the Framework Decision on attacks against information systems[30]. According to these provisions, the Member States involved “shall cooperate in order to decide which of them will prosecute the offenders in question with the aim, if possible, of centralising proceedings in a single Member State”.[31]It is interesting to note the relevant provisions in the Framework Decision on Terrorism and those in the Framework Decision on attacks against information systems, provide that in achieving the centralising of proceedings in a single Member State, "the Member States may have recourse to any body or mechanism established within the EU in order to facilitate cooperation between their judicial authorities and the coordination of their action". Therefore, the use of EU bodies such as Eurojust is encouraged for these specific crimes. For terrorism specifically, there is a specific link to Eurojust via the national terrorism correspondents established by Article 3 of the Council Decision of 19.12.2004 on terrorism.[32]

On the whole, the existing set of piecemeal rules does not provide a general procedure to avoid and, if need be, resolve conflicts of jurisdiction. It appears to be insufficient for two reasons; Firstly, most of these rules are quite general and abstract and it is, therefore, questionable to what extent they are being put into daily practice[33]. Secondly, these rules are only applicable to specific types of crime; this can even complicate the work of legal practitioners and it thus seems preferable to approach this issue holistically.

PROCEDURAL ARRANGEMENTS FOR DETERMINING JURISDICTION

This part will make suggestions on the procedural characteristics of an effective mechanism of determining an appropriate jurisdiction. In particular, it will deal with the stages of identification and information of other potentially interested Member States, consultation-discussion and dispute resolution/mediation.

It should be emphasised that this Green Paper does not deal with the system created by Article 85 of the EC Treaty and by Regulation No 1/2003[34], where the Commission and the national competition authorities have parallel competence for the enforcement of Articles 81 and 82 of the Treaty. Under that system, and in accordance with the case-law of the Community courts,[35] the Commission is entitled to adopt at any time individual decisions under Articles 81 and 82 of the Treaty, even where an agreement or practice has already been the subject of a decision by a national court. The criteria for the allocation of the cases between various enforcers may only be flexible criteria of work-sharing. Furthermore, in the area of competition law the concerns raised by multiple actions are less relevant as the procedures tend to target large corporations. Finally, the Regulation already provides for mutual information[36] and includes a mechanism designed to settle conflicts.[37] This paper therefore does not intend to cover this area.’

Pre-conditions

a) Mutual exchange of information

An indispensable prerequisite both for the sound application of a mechanism for determining jurisdiction and for the consistent application of the ne bis in idem principle, is that the competent national authorities should become aware of proceedings and/or related decisions in each others’ jurisdiction: they should be allowed, and perhaps even be obliged, to exchange the relevant information. In other words, such a mechanism can only function effectively if the competent authorities are promptly informed of ongoing proceedings in other Member States on cases which have led or are about to lead to a criminal prosecution in those Member States and which are significantly linked to their own jurisdiction. As of yet, this is not guaranteed. At present, investigators and prosecutors, on their personal or on their authorities’ initiative, might inform their colleagues in other Member States of such cases. Often, such information is only exchanged where a concrete need for cross-border cooperation has been identified, e.g. on collecting evidence.

Therefore, the purpose of this chapter is to suggest measures for improving mutual information as regards the existence of parallel proceedings and/or conflicting decisions. The following options, in the long run, may also contribute to other ends too, which do not fall within the scope of this Green paper: for instance, by ensuring that prosecutors and judges inform each other on proceedings and decisions, offences committed in other Member States can be taken into account for sentencing, in particular by considering recidivism[38]. The latter issue has been addressed by a Commission proposal for a Framework Decision on the taking-into-account of convictions[39]. Improved exchange of information on criminal proceedings is also part of the efforts on information exchange for law enforcement purposes, on which the Commission has presented several proposals, including on the use of computerised means and the necessary safeguards for protection of personal data.[40] In addition, there is a Member State initiative on related issues[41].

aa) Information on final decisions (including criminal records)

Article 57 of the Convention Implementing the Schengen Agreement ("CISA") states that the competent authorities “shall, if they deem it necessary, request the relevant information” if they “have reasons to believe” that a charge relates to the same acts as those in respect of which a final decision, terminating the possibility of prosecution, has been taken. The information requested shall be provided as soon as possible and be taken into consideration.

However, apart from the fact that this provision might not always be fully observed in practice (there are indications of this, such as individual complaints and press reports), it does not suffice to exclude the possibility for the initiation of repeated/parallel proceedings, as the provision only applies where there are concrete reasons for putting forward a request. While prosecuting authorities may often request such information from other Member States because of references from the accused or their lawyer, the latter might sometimes either abstain from referring to a previous decision or the decision may have been rendered in absentia and the accused may not be aware of its existence or content. To ensure mutual information, certain obligations to inform on a pro-active and systematic basis might be needed.

bb) Information on Convictions

Within the traditional system of mutual assistance, Articles 13 and 22 of the 1959 Convention on Mutual Assistance in Criminal Matters, which is ratified by all EU Member States,[42] it is provided that Contracting Parties shall communicate convictions on request, and inform other Contracting Parties on convictions in respect of their nationals. Under Measure 3 of the Mutual Recognition Programme of 29.11.2000 there is a call for a standard form for criminal record applications “like that drawn up for the Schengen bodies”.

The Extraordinary European Council on 25 and 26 March 2004 has endorsed as part of the fight against terrorism[43], the creation of a “European register of convictions and disqualifications”. This was given further support at the Justice and Home Affairs Council meeting on 19 July 2004. On 13 October 2004 the Commission adopted a proposal for a decision designed to improve exchanges of information on criminal convictions, which corresponds to the first part of that action.[44] Its aim is to improve in the short term the existing machinery for exchanging information on criminal records, originally set up under the 1959 European Convention on mutual assistance in criminal matters. The proposal will help to speed up the transmission of information between national registers. It stipulates that if a Member State convicts a national of another Member State, it must without delay inform the Member State of which the convicted person is a national. The proposal would also create an obligation to respond to requests within five days and by using model forms for requests and for replies, contributing to better mutual understanding of the information that is sent. To this end, within 2005, the Commission will table more ambitious proposals on the setting-up of an EU computerised system for exchanging information on convictions.[45]

cc) Information on other final decisions with ne bis in idem effect

Criminal records in most Member States do not contain information on acquittals or on decisions following an agreement between prosecutor and defendant comparable decisions finally terminating the possibility of prosecution. Including information on acquittals in criminal records may in some Member States be controversial as the person acquitted may consider that such a practice would diminish his acquittal.

However, it is difficult to imagine how the Ne bis in idem principle will be fully respected without a mechanism which would ensure that this information is available to the courts and to prosecuting authorities throughout the EU. In this vein, point 2.3 of the Mutual Recognition Programme encourages a feasibility study on the setting up of a central register of proceedings (i.e. not a criminal record), “which would make it possible to avoid bringing charges that would be rejected under the ne bis in idem principle and which would also provide useful information on investigations concerning offences involving the same person”. Issues of data protection and security, as well as of access to such a register would have to be thoroughly examined in this context.

Currently, the Commission does not envisage creating a central register of proceedings. Maybe a certain linkage among existing domestic registers could be discussed, but the added value would be limited as long as not all Member States have such a register (or if they at least have regional registers which could be linked with each other).

dd) Information on ongoing proceedings and interim decisions

In order to deal with jurisdiction conflicts, certain steps will also have to be considered for mutual information about ongoing proceedings. Only if the competent authorities become aware of proceedings taking place in other Member States will they be able to enter into discussions among each other as to where to prosecute a case and to agree as to the most appropriate jurisdiction.

In turn, reference is to be made to point 2.3 of the Mutual Recognition Programme and to point 49(e) of the Vienna Action Plan, which suggests “examining the possibility of registering whether there are proceedings against the same person on the same offence pending in different Member States”. The experience to be gained through an improved exchange of criminal records might help to decide what kind of mechanism for an exchange of information on ongoing proceedings would be suitable and feasible. The purpose should be to enable the authorities to assess whether their proceedings are identical or overlap with those in other Member States. This could mean that the prosecuting authorities would have the ability to request and receive data on the identification of the suspect or accused, on the suspected offence and its time and place, and possibly also an abstract of related facts. One can contest whether further data such as aliases and contact details (address etc.) related to suspected persons would also have to be exchanged, as well as certain pieces of information on related legal persons and victims for identifying cross-links between investigations. As said above, these courses of action go beyond the aims of this paper; the aim is not to suggest ways of improving intelligence and/or investigation techniques but to avoid multiple proceedings.

It also appears appropriate to consider whether in choosing the most appropriate jurisdiction, the competent authorities would also need to be informed of cases in which proceedings have been discontinued, withdrawn, or temporarily suspended. (“Interim decisions”). In other words, is the transmission of information about cases where the decision does not bar or finally terminate the possibility of a further prosecution also necessary? The motives for such decisions under domestic law can be manifold, such as factual findings (e.g. insufficient evidence, in dubio pro reo)[46], or that a penalty does not appear indispensable because of penalties expected to be imposed on the same person for other offences[47]. It is possible that by taking into account information stemming from other Member States, the Member State where such a decision has been taken turns out to be the most suitable jurisdiction to prosecute, and could thus reconsider the possibility of further proceedings. Particularly in cases where a prosecution was discontinued because of insufficient evidence, a transfer of such information would be probably very useful in giving the whole picture of the underlying act.

b) Ability to halt/close proceedings

Secondly, once the national authorities of a Member State become aware of proceedings in other Member States, the prosecuting authorities of a Member State should have the ability to refrain from initiating a prosecution, or to halt an existing prosecution, on the mere ground that the same case is being prosecuted in another Member State.

Refraining from initiating a prosecution (or halting an existing one) could raise problems to the legal order of Member States which adhere to the legality principle, where the competent authorities have a duty to prosecute every crime which falls within their competence. This could raise problems, in particular, when the principle is provided for in a national Constitution. Although all Member States applying the legality principle also provide for certain exceptions in their domestic law, it seems that currently many of them do not provide (explicitly) for discontinuing proceedings merely on the ground that a case is being prosecuted in another Member State which is equally or better placed to do so. It seems that even in systems based on the opportunity principle guidelines by Prosecutors General and/or other superior authorities are not always formulated in a manner that allows, if need be, to discontinue proceedings merely on this ground. It is not sufficient that they are allowed to discontinue proceedings on acts which occurred outside of their own territory, or with regard to offences for which an (European) arrest warrant has been issued in another Member State, because it is conceivable that an act occurred on several Member States’ territories and it might also be appropriate to concentrate proceedings in a Member State which has not, or not yet, issued an arrest warrant.

Therefore, it becomes necessary to consider the creation of a provision at EU level which would allow an authority in one Member State to suspend or to close a prosecution on the ground that an authority in another Member State is dealing with it or has already dealt with it. Article 3 of the Transfer Convention could serve as a model text. In addition, with regard to the co-ordination of proceedings and possible synergy effects, one might also consider taking an approach analogous to that of Article 28 of Regulation 44/2001 on civil and commercial matters which states that where related proceedings[48] are pending in different Member States, the competent authorities could be permitted to stay their own proceedings with a view to a transfer to and/or an accumulation with the related proceedings in the other Member State.

In this respect, 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.

Question 1: Is there a need for an EU provision which shall provide that national law must allow for proceedings to be suspended by reason of proceedings in other Member States?

Creating a "Duty to inform"

While a European register of proceedings would currently seem theoretical, a feasible measure could be to create an EU-wide duty for domestic authorities to inform their counterparts in other Member States under certain circumstances.

To avoid premature decisions and/or actions originating from a lack of knowledge of the situation in other Member States, a mutual exchange of information and of views on the best place to prosecute should start as early as possible[49]. An appropriate stage could, for instance, be the (formal) stage when a prosecution is launched. Under certain circumstances, for example in cases extra-territorial jurisdiction, a transfer of information might already be required, when an authority considers initiating a prosecution, as foreseen in an agreement concluded among the Prosecutors General of the Nordic States (which, however, is not legally binding)[50]. And even after a certain jurisdiction has been agreed there can still be a need for exchanging information on proceedings, e.g. on important procedural steps (e.g. the first questioning of or taking declaration from the suspect, an indictment and/or a waiver or discontinuation of proceedings).

However, because of the need for adequate protection of personal data and the need for maintaining the efficiency of prosecutions, such a duty should not go beyond what is necessary in enabling the competent authorities in other Member States to express their view and effectively contribute to a possible solution. Law enforcement and prosecuting authorities often work under high time constraints and suffer a heavy workload. These burdens should not be increased where it is not absolutely necessary. A mutual information mechanism should not hinder measures which may be urgent. It should be as plain and simple as possible. This means that where a duty to inform is deemed necessary there should be enough flexibility regarding the timing and the contents of the information to be supplied.

In this vein, an option would be to make it obligatory to inform only when a Member State decides to prosecute a case (or as soon as it launches a prosecution) in a case which demonstrates significant links to another Member State. The mere fact that another Member State has jurisdiction should not trigger such a duty: first, as this would be tantamount to requiring domestic authorities to examine jurisdiction under other Member States’ law; secondly, as the jurisdiction of some Member States is very wide, sometimes even based on the universality principle. Neither should such a duty come into play by the mere fact that an initial investigation is taking place; a later stage in the criminal proceedings seems more appropriate. However, if an authority considers that it is necessary inform others about a case from an earlier stage then it should be allowed to do so.

What appears to be necessary is the laying down of an EU rule which would oblige the authorities of the Member States to contact the authorities of other Member States, when a case before them demonstrates a real possibility that other Member States would also be interested in prosecuting the same case. Such a potential interest could objectively be identified if the case before them demonstrates significant links to another jurisdiction. In other words, such a rule could oblige national authorities to inform the competent authorities of other Member States of their intention to initiate a prosecution (or of their actual initiation of a prosecution) when the facts of a case before them indicate significant links to another Member State.

Alternatively, it could be argued that an interest of another to prosecute the same case could be objectively identified in cases where it appears that another Member State could also bring a "viable" prosecution on the same case. Of relevance to this is the text which is found in article 7 of the Framework Decision on Increasing Protection by Criminal Penalties and other Sanctions against Counterfeiting in Connection with the Introduction of the Euro, which states that: "...Where more than one Member State has jurisdiction and has the possibility of viable prosecution of an offence based on the same facts, the Member States involved shall cooperate in deciding which Member State shall...”[51] However, this suggestion could be quite vague as the possibility for a viable prosecution could prove to be a very unclear term and thus difficult to apply consistently in practice. Furthermore, it is doubted whether a prosecuting authority could objectively ask this question of viability for another. Finally, it could be argued that with the available instruments of mutual assistance which are currently in place more and more Member States can bring a viable prosecution if the assistance is actually provided to them. Therefore, the test of the ability to bring a viable prosecution appears to be too wide and could thus lead to a duty to inform in an excessive number of cases. Therefore, the test for “significant links” appears more objective in identifying potential interests and easier to apply consistently in practice.

As regards the moment that this duty to inform could begin to apply, it is suggested, that an appropriate stage could be the moment when the authorities decide to proceed beyond the investigation stage or as soon as they launched a prosecution in such a case. As said above, such an exchange of information could also take place earlier if this is considered appropriate in a case. As communication channels one could revert to existing bodies such as the European Judicial Network (EJN), Eurojust (possibly on the basis of information provided by Europol) or – in the future – the mechanism for an exchange of criminal records. In any case, sensitive information must be transferred in a strictly confidential manner respecting established data protection requirements[52] and through secured information channels[53].

Question 2. Should there be a duty to inform other jurisdictions of ongoing or anticipated prosecutions if there are significant links to those other jurisdictions? How should information on ongoing proceedings, final decisions and other related decisions be exchanged?

Creating a "Duty to enter into Discussions"

A duty to inform should be combined with effective consultations/discussions between the competent authorities of the Member States concerned. Consultation should also be an integral part of the envisaged mechanism as regards the effective prevention of conflicts of jurisdiction.

The competent authorities should strive to identify the best place(s) for further proceedings, by taking into account each other’s positions. The objective should be to reach consensual solutions at an early stage, through bilateral discussions between the concerned Member States. As expressed in the Commission’s Communication on computer crime of 26.1.2000,[54] the finding of consensual solutions will depend on effective bilateral and multilateral consultation. Only through consultation could the right balance be struck between the rights and interests of the persons (victims and defendants) and States concerned. Based on a mechanism which would guarantee the open exchange of information, the authorities concerned should be enabled to quickly contribute their point of view during their discussions and, if need be, to provide additional facts.

How could it be safeguarded that this process of consultation/discussion takes place effectively? An option would be to create a duty to enter into discussions so that to ensure that the opinions of others would be taken into account or at least put forward. However, what has been pointed out above concerning the option of creating a duty to inform also applies for the stage of consultations: excessive obligations and formalism could hamper the operations and tasks of the prosecuting and judicial authorities. Red tape is to be avoided. What is needed is a flexible, direct and rapid consultation. Prosecuting authorities must be able to proceed with urgent measures without having to wait for an opinion from another authority.

In view of the above preliminary considerations, the suggested mechanism could be composed of the following steps;

The characteristics and the "Steps" of the suggested mechanism

1. Step1: Identification and information of other potentially interested Member States

As said, as a first step, it is essential that the competent national authorities which intend to initiate or have already commenced a prosecution (the "initiating States") in a case which contains foreign elements, to consider whether these elements are so important that another Member State could also be interested to prosecute the case as well. Accordingly, the competent authorities of the initiating State, could be obliged to communicate the commencement (or their intention to commence) of a prosecution to the authorities of other Member States which could also be interested to prosecute the same case. Such an obligation could apply to prosecuting authorities, and/or to other judicial/ investigating or law enforcement authorities depending on the particular characteristics of the criminal justice systems of the Member States.

An analogous obligation of informing others could also apply to the authorities of a Member State which are dealing with cases which initially do not demonstrate a significant link to another jurisdiction, but such a link only appears at a later stage of the proceedings. Furthermore, such a duty could be "reborn" in the situation that the mechanism is applied and the prosecution of a case is allocated to a "leading" State, but at a later stage the latter's authorities discover an important fact (which was not known when the mechanism was initially applied) which could trigger the interest of another Member State.

The Member States which will be informed of the commencement of prosecutions in other Member States which are linked to their own jurisdiction, could in turn respond by indicating their actual interest in prosecuting the same cases as well. Possibly, a provision could state that this expression of interest should be declared within a fixed period of time. Such a suggested deadline for issuing a “declaration of interest” could run from the point of time of receiving the relevant information from the initiating State. However, in exceptional cases Member States could be allowed to react outside the deadline so that to deal with situations where a Member State identifies an interest to prosecute a case at a later stage.

It is fair to argue that the prosecuting authorities who initiate this consultation procedure should hear the views of any other Member State. However, it appears more practicable to limit, in principle, the consultation process to those which have been identified by the initiating State as having a potential interest to prosecute through the identified links to their jurisdiction.

In order to ensure that the mechanism functions efficiently, the suggested system could also provide that if the initial transmission of information did not result any objections by the Member States which were initially consulted, then the initiating State would have the right to continue, according to its national law, with the prosecution of a case. However, it needs to be stressed that, as mentioned above, if facts which point to a new potential ground of interest of a Member State are discovered at a later stage, a new duty to transmit information shall arise. (Possibly accompanied by a deadline to allow for responses)

In any case, the domestic authorities who declare their interest to prosecute should stay in close contact with the initiating State and inform each other of any important decisions relating to their domestic proceedings. In particular, this should apply to any final decision enfolding a ne bis in idem effect, but possibly also to an indictment being sent to court, a delivered judgment and of a suspension and/or discontinuing of proceedings.

2. Step 2: Consultations/Discussions

The concerned authorities will then have to examine the question of which is the best place for concentrating the prosecution of the case under discussion (by taking into account the substantive criteria are outlined in section 9 below). Direct contact –consultations between the competent authorities of the concerned Member States seems to be the most appropriate means of discussion, at least for the first exchanges of views. Moreover, where necessary, these authorities could ask for the assistance of Eurojust, which has adequate facilities, such as premises for coordination meetings, a secured communications network and experience in the field. However, it might not be feasible and appropriate to refer all cases exclusively to this body.[55] Member States should especially ask for Eurojust’s assistance in serious and/or multilateral cases, particularly on organised crime,[56] and in cases of a particularly complex nature.

In an ideal scenario, step 2 would lead to an early finding of consensus as to the ideal jurisdiction. Such a scenario would lead to the practical state of affairs that an authority voluntarily decides to either close its proceedings or to refrain from initiating its own prosecution in the case, thus allowing another authority to initiate and/or continue with a prosecution. The relevant authorities could thus simply proceed according to their national law.

In essence, there seems to be no need to formalise such a voluntary/ consensual situation. It seems preferable to leave sufficient flexibility and freedom for further revision of such arrangements so that to deal with situations where new findings change the picture. However, in certain cases it could be desirable to provide for an appropriate legal framework for binding agreements. In order to achieve legal certainty and avoid the risk of a reopening of the debate of where to prosecute a case, the national authorities could conclude a binding agreement if they consider this appropriate. Where they decide to do so, they could be required to use an EU model for such formal agreements. Furthermore, such an agreement could be subject to legal review by the defendant and possibly by victims. The relevant EU model/framework could also define the situations in which an agreement could be denounced by one of the parties.

In the situation that one jurisdiction gets the case while others step back, (by either closing their own proceedings or stating that they will refrain from initiating a parallel prosecution on the same case) it is important to point out that the latter jurisdictions should continue to play an active role by providing information, evidence and any other requested assistance to the leading jurisdiction. To this end, a future legislative instrument could provide that the closing of national proceedings, without imposing a penalty or deciding on the merits, by reason of a better placed jurisdiction should not be a bar to the provision of mutual assistance to the Member State which will continue with the prosecution of the case. This would avoid the occurrence within the Union of situations where assistance is refused after proceedings are closed on the mere ground that proceedings are ongoing in another Member State, as it was the case in the Miraglia [57] case which is discussed at part 11.3 below.

In contrast, if consensus can not be attained at this second step of the suggested mechanism, the question of determining the most appropriate jurisdiction could be transferred to the third step of the suggested mechanism.

Question 3: Should there be a duty to enter into discussions with Member States that have significant links to a case?

Question 4: Is there a need for an EU model on binding agreements among the competent authorities?

3. Step 3: dispute settlement / mediation

As a next step in the mechanism, a further stage could be envisaged so that to deal with the situations where the competent authorities can not easily agree on the most appropriate jurisdiction. In these cases, a swift and flexible mechanism for dispute settlement/mediation will be needed.

An appropriate option would be to involve a body at EU level to act as a mediator . Where there is not merely a temporary problem of lack of information, but where a “real” dispute arises, dispute resolution should be promoted both through the mechanism itself and pro-actively by the authorities concerned. To this end, several options can be envisaged.

In this respect, Eurojust appears to be well placed to take over the role of mediator on the request of one of the concerned authorities. To some extent, this is already possible according to the existing Council Decision setting up Eurojust. According to its Articles 6(a), 7(a) and 8, Eurojust can request the competent authorities “to accept that one of them may be in a better position to undertake an investigation or to prosecute specific acts”. Moreover, Eurojust can currently also contribute in avoiding “negative” conflicts of jurisdiction, i.e. cases where no authority is willing to prosecute.

Alternatively, it is also conceivable to create a new mechanism to promote dispute resolution. For instance, one could set up a board or panel (e.g. a troika or quadriga composed of senior national prosecutors or judges) which would suggest the most appropriate jurisdiction to the concerned authorities (by means of a non-binding "advisory opinion"). It is interesting in this context to look at the agreements among the Prosecutors General of the German Länder , according to which three Prosecutors General are entrusted with the task of identifying an appropriate jurisdiction for cumulative proceedings[58]. Although different circumstances exist on the European level, it is possible that a comparable mechanism could be created at EU level. Details on the composition of such a panel would have to be agreed on, e.g. whether the panel would have a permanent structure or rather be created ad hoc, whether representatives from the concerned Member States should be included or not. In any case, if a new mechanism such as a panel were to be set up, it should not interfere with the competences of Eurojust, particularly in the fields of terrorism and serious and organised crime.

This third step of dispute resolution/mediation could be launched on the request of any Member State which expresses an interest in prosecuting a case which raises questions of jurisdiction conflicts. Any such Member State could be given the right to refer the case for dispute settlement. It would also be valid to argue that a dispute settlement procedure could become compulsory after a period of time elapses in step 2 (consultations – discussions), to ensure that cases which can not be allocated easily due to significant disagreements are promptly transferred to this EU centred / assisted stage of the mechanism. It should also be noted that the creation of an obligation to enter into such a process may strengthen the willingness of those involved to arrive at a consensual solution from an earlier stage.

Furthermore, the comments on the previous step as regards the practical effect in the situations that consensus is easily reached, could also be made for the mediation/dispute resolution stage. The competent authorities could voluntarily decide that one of them continues and the other(s) closes down any national proceedings (or waives its interest to initiate a prosecution) on the same case. Alternatively, they could decide to put this down in writing and conclude a binding agreement in line with a suggested EU model.

It should be stressed that this step of the mechanism should aim to provide active assistance in the resolution of all real "jurisdiction conflicts" between the Member States. This step should strive to ensure that the principle of ne bis in idem would become of less practical use. In other words, provided that the cases which raise real "conflicts" questions are promptly identified by national authorities and provided that consensus is successfully reached, at the latest by this last stage of the mechanism, there would hardly be cases where Member States would come to final decisions without considering the interests of other Member States.

Whatever the nature of this step, (dispute resolution through Eurojust or through the creation of a Panel to undertake dispute resolution-mediation) it should in any case offer the opportunity for a structured dialogue between the interested parties which would allow for an objective consideration of the interests involved. Besides, in the long term, such a mediation process may allow for the building up of a consistent approach in dealing with similar conflicts.

Question 5: Should there be a dispute settlement/mediation process when direct discussions do not result in an agreement? What body seems to be best placed to mediate disputes on jurisdiction?

4. Possible additional step: a binding decision by an EU body?

A sound implementation of the three-step mechanism outlined above, together with the laying down of the relevant criteria for the choice of jurisdiction and a priority rule as outlined below, is likely to lead to a consensus in many, if not most cases. These 3 steps are prima facie feasible to create, and may be considered sufficient unless further experience would reveal a need for a further step. One may well take the position that such a need has not yet been demonstrated, and therefore be content with such a flexible mechanism which would finish with step 3. In cases where no consensus can be achieved through mediation, multiplied prosecutions would have to be accepted temporarily, until the ne bis in idem principle would come “back” into play.

In the long run one could envisage a further procedural step, which could consist of referring the matter to a body on EU level which would be empowered to take a binding decision on the (most) appropriate jurisdiction. However, this additional step seems difficult to realise. In any case, the main objective should be to achieve consensual solutions, so that the possibility of a binding decision should be considered an ultima ratio where the mediation process has failed. The overall procedure should be as simple as possible. In this respect, the mediator and/or one of the competent authorities could end the process of dispute settlement after a certain period of time by declaring that an attempt of finding a consensus has failed. Decision-making would depend on the structure and composition of the relevant body, but in essence, to ensure efficiency it should be based on majority (if deemed necessary, qualified majority).

One difficulty is that the roles of a mediator and of an instance taking binding decisions do not appear to be compatible. Therefore, a new additional body on EU level would have to be created if a need to create a further step arises in the long term: if Eurojust plays the role of a mediator, a new body would have to take a binding decision where a dispute could not be settled; on the other hand, if Eurojust were to receive a power to take binding decisions,[59] which would change its nature considerably, mediation would have to be carried out by a new body. Another even more difficult hurdle in issuing binding decisions on jurisdiction at EU level would be the question of providing for judicial review. It seems indispensable that such a binding decision should be made subject to judicial control. However, as explained below, the current Treaties do not provide for a competence of the European Court of Justice in this regard, while control by a national court of decisions taken at EU level is both inappropriate and legally impossible.

Question 6: Beyond dispute settlement/ mediation, is there a need for further steps in the long run, such as a decision by a body on EU level?

The legal effect of the allocation of a case to the most appropriate jurisdiction

The legal effect of a successful allocation of a case to the most appropriate jurisdiction through the 3 steps suggested above is another important practical element of the suggested mechanism that deserves consideration. In order to put forward suggestions as to the validity and/or binding effect of such arrangements/agreements, the various possible end results on the cases that would be filtered through the suggested mechanism should firstly be summarized.

As suggested above, if there is no expression of interest by any of the potentially interested Member States in response to the communication to them of the intention of an initiating State to commence (or of its actual commencement of) a prosecution in a case which is linked to their jurisdiction, the initiating State shall continue with the case according to its national law. On the other hand, when a Member State which has been informed of such a prosecution expresses an interest to prosecute the same case the following developments-scenarios could arise;

(a) After brief direct discussions (step 2) or after the dispute-resolution/mediation (step 3), a State(s) voluntarily decides to close down an ongoing national prosecution for the same case or decides to refrain from launching a prosecution on a case which another Member State also wants to prosecute.

(b) After brief discussions (step 2) or after the dispute-resolution/mediation (step 3), the concerned Member States could consensually decide as to which shall be the appropriate jurisdiction, but this time they decide to put this down in a binding agreement. The EU could supply a model and an appropriate legal framework for such binding agreements.

The voluntary arrangements resulting form scenario (a) do not have to be made legally binding. Similar voluntary arrangements are already taking place between Member States within the current legal framework. The relevant authorities could thus simply proceed in line with their national laws. After such voluntary arrangements, the Member States concerned should be allowed to reopen the procedure at a later stage if they consider this appropriate, by launching new consultations/discussions (e.g when the picture changes at a later stage). Such a right to reopen the discussions could be permitted irrespective of the reason that a Member State puts forward and could be subject to the same rules as steps 1-3 above.

In scenario (b), the competent authority would conclude a binding agreement, using the terms contained in a potential ´EU model agreement´. In this occasion, the reopening of the procedure by launching new discussions would only be possible under certain common conditions laid down in the agreement itself which would be protected by EU law. In other words, Member States would not have an unfettered right to reopen the consultation procedure after a binding agreement has been concluded.

THE ROLE OF INDIVIDUALS AND JUDICIAL REVIEW

The 3-step mechanism described above focuses on consultation between the prosecuting authorities of the Member States which are concerned with a specific case. This follows from the fact that during the pre-trial stage an intensive discussion of what is to be considered an appropriate jurisdiction with the suspected person or defendant and/or his lawyer is often not the most appropriate as it might often lead to the revelation of facts which could jeopardise the proceedings or the rights and freedoms of third parties.[60] Where this is not the case, the competent authorities are usually required by their national law to grant the defence a right to be heard and, if need be, access to the relevant files. To that extent, additional EU rules on the right to be heard, access to records and disclosure might perhaps be dispensable, at least in the pre-trial or preliminary phase.

Nevertheless, it might be desirable for EU law to require the competent authorities to include the defence during an early stage in a discussion dealing with the determination of the most appropriate jurisdiction. However, it seems difficult to set up a detailed rule on EU level which would cope with the various types of national proceedings of the Member States’ legal systems. An EU wide consultation mechanism should not force the prosecuting authorities to disclose information to the defence where the national law does not provide for this. Therefore, if an EU rule on the implication of the defence is deemed necessary, it would have to leave sufficient scope for flexibility and discretion to the competent authorities as to how to involve the defence when deciding jurisdictional issues at the pre-trial stage.

Although the role of the concerned individuals in criminal proceedings can often be rather limited during the pre-trial phase, the possibility for a legal review of jurisdictional issues appears to be more necessary at the trial phase. Determining jurisdiction, which in criminal matters usually includes determining the applicable law, can have significant effects on the concerned individuals’ rights and must, therefore, be subject to an effective remedy (Article 47 Charter, Article II-107 Treaty Establishing a Constitution for Europe). This, however, does not exclude leaving a considerable margin of discretion to the competent authorities.

The most obvious option for an EU rule on the requirement for legal review seems to be to leave this review to the national court which receives the relevant indictment or accusation after the jurisdiction allocation procedure is successfully completed, without excluding any other remedies that are available under national laws. It seems that the procedural law of all Member States provides for an examination of the admissibility of the charge including the jurisdiction of the court. In some Member States there is a preliminary chamber and often there is an intermediate stage before the trial is formally initiated. However, at first hand, the national courts would mainly examine whether at all they have jurisdiction under the applicable domestic law. A legal review on the additional question of which of the several competent Member States should be given preference in a certain case might not be foreseen in all legal systems. This question, which is crucial in the given context, could perhaps be solved by resorting to well established general principles of procedural criminal law, through specific rules or guidelines, adapted to the situation of an EU common area of justice, which would control the allocation of the leading jurisdiction among the Member States. General principles such as the right to a fair trial or due process, and/or the right to have one’s case heard by a legally competent court or by a “tribunal established by law” could be of relevance in this context. Where another Member State has jurisdiction for the same case, the defence could thus ask for a review on whether it was justified to bring the case before a particular jurisdiction[61].

It is thus reasonable to suggest that an EU rule should provide for the availability to individuals of the remedy of judicial review, at least for those situations where the resulting jurisdiction allocation becomes binding according to EU law. (i.e. When the agreement by the concerned Member States as to which of them shall prosecute a case is incorporated in a binding agreement). Those binding allocations could be made subject to common rules as regards, inter alia , the opportunities that a Member State would have in re-opening the procedure / denouncing the agreement. Since such binding allocations of jurisdiction would probably fetter the Member State's ability to put forward arguments and /or act according to the provisions and the remedies which are available in their national law to protect the interests of their citizens, it is necessary to suggest that such binding allocations should become subject to a right of judicial review in the hands of individuals. The question of whether to provide a right of judicial review should also be made available in the other non-binding consensual jurisdiction allocations could be left to the discretion of the Member States and their national laws, as the case is at present with regard to such consensual arrangements.

Another relevant issue relates to the grounds of challenge that could be used in the suggested judicial review of (binding) jurisdiction allocations. Judicial review could be limited to adjudication on whether the principle of reasonableness / due process has been respected and on whether the Member State which will try the defendant has jurisdiction to prosecute the case in question. Accordingly, a jurisdiction allocation would only be set aside by the competent tribunal if the latter finds that it is arbitrary, following doctrines inspired from the Member States national laws, such as abuse of process or abuse of discretion as a limit to the national authorities' discretion.

A further relevant issue that needs consideration relates to whether concerned victims should also be given standing to challenge jurisdiction allocations. Prima facie , due to the impact that this could have on the swiftness of the proceedings and the impact on defendants if allocation decisions are being continuously reversed, this does not appear to be the most preferred course of action. However, this possibility should not be excluded from the debate on the matter.

As regards the possibility of judicial review in the hands of individuals there are voices calling for a European preliminary chamber which would review the decision on determining jurisdiction from an EU level, possibly as part of the ECJ. In particular, there could be a judicial control by an EU tribunal. (Or by an independent EU body, subject to control by the ECJ) This option would have the advantage that the review would be carried out from a European perspective and that conflicting decisions by national tribunals could be avoided. Sometimes it is also said that it would be asking too much from national judges to resolve questions of several domestic laws. The latter argument, though, seems not so compelling, as national judges would only have to verify whether other Member States also have jurisdiction and whether the allocation was fair/ in line with principles of due process; they would not need to go into details of foreign procedural law.

Anyhow, the current Treaties do not contain a sufficient legal basis for the creation of an EU preliminary chamber or for a competence for the ECJ to review the legality of the decisions of national authorities which take place in individual proceedings in the area of criminal law. In criminal matters, Articles 35 and 46 TEU confer only a limited competence upon the Court. At least, Article 35 provides for preliminary rulings (paragraph 2 ff.) and for a ruling on disputes (paragraph 7) by the ECJ. However, the procedures envisaged in these Treaty articles do not concern acts relating to individual cases, but only questions on the validity and interpretation of an EU instrument. If a framework decision were to be adopted on conflicts of jurisdiction, the Court could rule on its general validity and interpretation but the ability to review individual allocations is lacking in concrete and would require changes to the primary EU Treaties. Moreover, the competence to issue preliminary rulings is subject to declarations by the Member States according to paragraph (2), and unfortunately not all Member States have issued such a declaration; secondly, although national courts can request a preliminary ruling, in some Member States they are not obliged to do so; thirdly, a dispute on the interpretation of a framework decision (paragraph 7) can only be initiated by Member States. In other words, neither the concerned individuals, nor the Commission nor any other EU body could ask for such a review.

Therefore, under the current EU Treaty legal framework only national courts are competent to perform judicial review of specific jurisdiction allocations. This brings us back to the suggestion for the long run concerning the possibility of making an EU body responsible for taking decisions on jurisdiction allocations in specific cases; Since there is currently no possibility for judicial review at EU level and no ability for national courts to review EU decisions it is more than clear that the creation of an EU body with a role of allocating the appropriate jurisdiction in individual cases is impossible to attain. In other words there is no possibility to provide for judicial review of binding EU decisions. On the other hand it is not appropriate to provide for such decisions without the possibility for judicial review.

For the future, it is to be noted that The Treaty Establishing a Constitution for Europe, under Article III-359, provides that a preliminary chamber or a court of first instance specialised in criminal matters could be established by a European law, therefore a competency by a European court to review individual allocations should not excluded under a new Treaty framework.

Anyhow, one should not underestimate the importance of the time factor in criminal proceedings, which are often highly urgent, particularly where the defendant is in custody, therefore the possibility of a provision which would impose time limits on national courts for coming to a final decision in such a judicial review could also be considered by a future EU instrument. Rapid decisions would be required in this area, and specific arrangements regarding the procedure, structure and resources might be needed if the ECJ is to be put in charge of a review, particularly if it concerns individual cases.

Question 7: What sort of mechanism for judicial control or judicial review would be necessary and appropriate with respect to allocations of jurisdiction?

A flow chart outlining the possible elements of a procedure for determining jurisdiction and for guaranteeing a balanced solution in that respect is provided below. The bolded lines indicate the main features of the procedure and the dotted lines indicate the possibility of judicial review and other possible long term additions.

[pic]

CONCENTRATION OF PROCEEDINGS

The ultimate purpose of the procedure/mechanism outlined above should be to give priority to one Member State. This would result a concentration of criminal proceedings, based on the same case, in a leading Member State. This should be the state of affairs at least after a certain stage is reached in the national proceedings. Such a priority rule would be entrusted with a similar role to what is called lis pendens in the area of civil law. The fact that in criminal matters, determining jurisdiction usually amounts also to determining the applicable law makes such a rule even more important than in civil matters where courts often apply the law of other Member States.

It is reasonable to argue that if combined with the procedural arrangements outlined above and with a set of criteria for choosing the most appropriate jurisdiction, such a priority rule (which would demand the concentration of a prosecution in a single jurisdiction) would lead to balanced choices of jurisdiction (instead of a fortuitous “first come first served”).

Despite the substantial differences between civil and criminal law, Article 27 of Regulation 44/2001 on civil and commercial matters may serve as a source of inspiration for a comparable rule or principle in criminal proceedings, despite the fact that both paragraphs of this Article are based on timely priority. In civil matters, at an intermediate phase, the jurisdiction of the “court first seized” is to be given priority, while others have to “stay” their proceedings (1); once the jurisdiction of the court first seized is established, any other court has to decline jurisdiction (2). This gives rise to several questions as to the transferability of this approach to criminal law.

A crucial question is whether the reference (exclusively) to “courts” would be appropriate in criminal matters too. While in civil and commercial matters there is usually no judicial pre-trial stage, in criminal matters the preliminary proceedings are highly important, although their nature and type varies considerably among the Member States’ legal systems. Therefore, in criminal matters one could envisage a reference to “prosecuting authorities” (or even law enforcement authorities in general, where they have instituted some form of proceedings-e.g an investigation) instead of courts[62]. This would mean that a priority rule would apply already as from an early stage of a criminal procedure. From an individual rights perspective, e.g. regarding free movement, this could at first sight seem desirable. However, in the course of a criminal prosecution, new findings might change the picture of what at first hand might seem to be the most appropriate jurisdiction. Therefore, it may not be wise to force the competent authorities to precipitate a choice of jurisdiction at an early stage. Moreover, applying a priority rule at such an early stage could considerably shorten the time available for determining the most appropriate jurisdiction and could also have negative effects on the implementation of the mechanism envisaged in this Paper. Therefore, until the moment when the trial phase is reached in a case, parallel proceedings (such as investigations by the Police authorities) in two or more Member States could be encouraged, in order to assist the concerned Member States to get as much information as possible before coming to a decision as to which of them is better placed to prosecute the case in question.

Regardless of the significant input that parallel proceedings could provide on the discussions between the concerned Member States when deliberating to decide which of them is better placed, parallel proceedings should not be allowed to continue indefinitely. They would have to be limited in time, or more appropriately up to a certain stage of the proceedings. The most appropriate moment for the application of a priority rule, which would demand the concentration of criminal proceedings in one Member State, seems to be the moment of the sending of an indictment or accusation before a court ; by that stage, on the one hand, prosecutors would possess the necessary information to conduct a thorough assessment of the question of the appropriate jurisdiction. On the other hand, the main legal, financial and psychological burdens for the concerned individuals normally result after the indictment. Therefore, the multiplication of burdens, which normally result from multiple proceedings in various States, can still be avoided even if a priority rule would only apply from the moment of the accusation and /or sending of an indictment before a court.

Another matter to be considered in this respect is whether timely priority is a proper concept in the area of criminal law. As explained above, the risk of an accidental or even arbitrary result when determining jurisdiction can be avoided by setting sound procedural and substantive rules (mutual information, consultation, decision making, legal review, and substantive criteria). In order to maintain a balanced approach, a priority rule, which would require the halting/suspension of parallel proceedings in favour of the jurisdiction which proceeds to the indictment stage, should not be left in a vacuum. In contrast to the situation in civil cases where the parties in a case (which raises issues of conflicts of jurisdiction) are usually the same, irrespective of the place (jurisdiction) where the case is brought before, in criminal cases the defendant could be the same but the prosecuting authority would differ. It thus appears necessary to provide that the priority rule should only apply as long as the mechanism is properly followed; especially as regards informing others and as regards entering into discussions.

Moreover, in order to avoid that a Member State, while in consultation with other foreign authorities, is able to reach the indictment stage so that to enjoy a priority rule and thus be free to complete its own national proceedings, such a rule could be combined with another rule which could provide that an indictment may not be brought while a consultation and/or dispute settlement-mediation procedure is still ongoing. In other words, the bringing of the indictment before the court would not be permitted during an open consultation and/or dispute settlement.

If the suggested rules are adopted, any communication of an intention to prosecute a case and the subsequent launch of the jurisdiction mechanism would bring into play, at least temporarily, a prohibition on indicting a defendant, irrespective of whether this communication of commencement /intention to commence is made by one which came second to another or is made by a State that had a temporal priority. In the event of a re-launching of the 3-step mechanism (because of new findings) similar rules would have to apply. However, where an indictment has already been brought before the court in line with the procedure set out above (e.g information obligation properly complied with), it could be provided that it would be up to the discretion of the competent national court whether to continue or stay the proceedings, despite any new findings (at a later stage of the court procedure) which would point to an interest of another Member State. This is crucial so that to avoid the repeated indicting of defendants in various jurisdictions. When exercising this discretion the court should take into account any adverse consequences on the accused.

In any case, the coming into play of a priority rule (which would prohibit parallel proceedings on the same cases after the indictment stage has been reached in one Member State and provided the Member State which indicted the defendant complied with its duty to inform others) should not prevent other Member States from providing any possible form of assistance and support to each other by means of the existing EU and international arrangements in accordance with their national law. National authorities in Member States, other than the ones chosen by the mechanism to continue with prosecutions, should provide information and advice whenever they have indications of further findings on the same case. If need be, they should provide information spontaneously as foreseen by Article 7 of the Mutual Legal Assistance Convention. However, they should not be allowed to take measures against any evidence, proceeds, suspects or witnesses without the previous agreement of the authorities in which prosecutions are concentrated[63].

In the exceptional situation that the authorities of a Member State dealing with a case which has already reached the indictment stage are informed that another Member State has also launched proceedings, they would have to immediately inform the authorities of that other[64]. Prima facie, it appears that together with this obligation to inform it appears necessary to attach a duty to halt court proceedings immediately so that a determination of the appropriate jurisdiction can promptly take place. However, it is suggested that this latter duty to halt their proceedings should only apply if the authorities in the first jurisdiction have not complied with their initial duty to inform and consult others. If they have complied, it would be a matter of discretion of the court which firstly reached the indictment stage whether to halt its proceedings or not. In such a scenario, the first authority should be given priority, unless it decides to enter into discussions.

In contrast, in the scenario that both Member States have reached the indictment stage already (without knowing about the other’s proceedings), then the rule as regards halting of the proceedings would apply in both States until the mechanism results an allocation. This latter rule could apply irrespective of whether one or both have breached their duty to inform. In any case, as regards these unfortunate scenarios (indictment in more than one Member State or indictment and parallel proceedings already launched in another) it could be provided that if the defendant has already been through court proceedings in one Member State that should be a relevant consideration in deciding where to concentrate the proceedings.

Another relevant question relates to what should be considered to cover the “same cause of action”–i.e. the same case – in criminal matters. Referring to what would be said below on Ne bis in idem , in the absence of opposing comments, the Commission would presume that the same concept of “same facts” should be applied both to the treatment of pending cases through the mechanism and as to the principle of ne bis in idem . Applying a different rule on pending cases than on final decisions would lead to a lack of legal certainty and to frictions among both types of rules.

Question 8: Is there a need for a rule or principle which would demand the halting/termination of parallel proceedings within the EU? If yes, from what procedural stage should it apply?

THIRD COUNTRIES

In an international context the ambitions would have to be much more modest than within a common area of freedom, security and justice. Nonetheless, it could be useful to improve exchange of information and perhaps establish a consultation mechanism in relation to certain third countries, particularly those with comparable fundamental rights and data protection standards, such as the parties to the Council of Europe and the ECHR.

In this context, it should be mentioned that Eurojust is empowered to negotiate agreements with third countries, under the approval of the Council, which may include the exchange of judicial information on ongoing proceedings and convictions. It is thus feasible to improve exchange of information in general and, in the long term, to establish consultation mechanisms. The focus of an exchange with third countries might be put on final judgments (convictions and acquittals) with a view to strengthening the ne bis in idem principle. Beyond that, a closer cooperation seems possible towards certain States.

It is also noteworthy that the Council of Europe’s European Committee on Crime Problems (CD-PC) has taken up suggestions for setting up a “European area of shared justice” based on enhanced mutual trust, which could include certain rules on determining jurisdiction[65]. Besides setting up a mechanism within its area of justice, the EU could perhaps also support and/or complement such activities in a wider context. In this regard, it should be examined whether such arrangements should be based on a mutual (and if need be multilateral) consultation process, possibly even including provisions for dispute settlement, or rather on the approach taken in the Transfer Convention. While the first seems preferable in the EU area of justice, an approach based on a request for a transfer of proceedings could be sufficient in an international context. Multilateral arrangements such as the agreement among the Nordic States of 25 September 1970[66] demonstrate that within this approach simplification of procedures is possible. This agreement allows for requests from one country to start proceedings in another country, under certain conditions.

Question 9: Is there a need for rules on consultation and/or transfer of proceedings in relation to third countries, particularly with parties to the Council of Europe? What approach should be taken in this respect?

CRITERIA FOR DETERMINING JURISDICTION

Together with a procedural mechanism for determining jurisdiction and with a rule which would demand the concentration of parallel proceedings in a single jurisdiction, the laying down of substantive criteria for determining jurisdiction should be the third element of a complete strategy to prevent and resolve conflicts of jurisdiction. As stated above, the Commission is of the preliminary view that each case is unique. Therefore, the decision on which jurisdiction is best placed to prosecute a case which of interest to several Member States, must be based on the particularities and the specific facts of the case at hand. All the relevant factors would have to be considered in order to allocate a case. As every case is unique, no 'hard and fast' jurisdiction rules should apply. However, guiding principles and criteria could still be identified and possibly be mentioned in a future instrument.

There are already some legal texts both by the EU and the Council of Europe, which can serve as a basis for the discussion on a comprehensive approach for the EU common area of freedom, security and justice.

Article 8 of the Council of Europe Transfer Convention[67] lists the following criteria which determine exhaustively the cases where one Contracting State may request another to take proceedings:

- place of residence, nationality and “State of origin” of the suspect (letters a, b)

- place of detention of the suspect (if serving a sentence, letter c)

- ongoing proceedings against the suspect(s) (letter d)

- location of the most important items of evidence etc. (letter e)

- possibilities of enforcement and rehabilitation (letters f and h)

- And possibilities to ensure the presence of the suspect at hearings (letter g).

In EU law, there are currently certain provisions which lay down relevant criteria for choosing an appropriate jurisdiction. However, they only apply to specific types of crime. For example, regarding the participation in a criminal organisation, Article 4(2) of the relevant Joint Action[68] requires the Member States to take into account, in particular, the location of the organisation’s different components. On terrorism offences, according to Article 9(2) of the Framework Decision combating terrorism,[69] “sequential account shall be taken of the place of commitment, the nationality or residence of the perpetrator, the “Member State of origin of the victims”, and the place where the perpetrator was found.

A number of factors may influence the decision-making process when determining jurisdiction. In its Guidelines on where to prosecute, Eurojust proposes a non-exhaustive list of the following relevant factors:

- the location of the accused, and the possibilities for extradition and surrender

- the possibility of accumulation or division of prosecutions in complex cases

- the attendance and protection of witnesses

- the expected length of time of proceedings

- the interests of victims

- evidential problems

- legal requirements and sentencing powers

- the possibilities to seize, restrain and/or recover proceeds of crime

- the resources and costs of prosecuting.

Together with the criteria of the Transfer Convention[70], the Eurojust Guidelines can serve as a starting point for reflections on the possible relevant criteria which could be contained in an EU instrument. Such an instrument could perhaps also identify factors which should not be considered as relevant factors.

Territoriality

Based on the findings of its seminar, Eurojust starts from the preliminary presumption, “that, if possible, a prosecution should take place in the jurisdiction where the majority of the criminality occurred or where the majority of the loss was sustained”. This can be understood as a more developed version of the criterion of territoriality (or place of commission), since it takes into account that the “loss” (or damage) forms part of the elements of many, if not most, offences. Territoriality is also mentioned as the first and thus most important factor within the Framework Decision on terrorism. An analogous provision is also found in the recently adopted Framework Decision on attacks against information systems. In addition to the latter instruments, one may conclude indirectly from other EU law provisions, that there is a consensus among EU Member States on the validity of the territoriality principle as an important criterion. In particular, this seems to follow from Articles 55(1)(a) CISA and 4(7) of the EAW Framework Decision. Moreover, the territoriality principle is an established principle of doctrine of public international law.[71]

Therefore, territoriality is not to be treated as a mere objective criterion but also as a criterion which is widely recognised[72]. Territoriality refers to the place of commission of an offence and, depending on the nature of the offence, where appropriate, it can also include the place where the harmful consequences or effects occurred. To that extent, determining jurisdiction based on territoriality would automatically include a certain link to the interests of the persons suffering loss or injury, i.e. victims and, in certain cases, concerned States.

In any case, it would be difficult, if not impossible, to develop a general definition of “place of commission”. Where the constituent elements of an offence are not approximated by EU law, it is possible that the criterion of territoriality leads to different results, even more as different legal systems may take different approaches on such a definition. Even if an EU wide definition was created for “place of commission” (which perhaps would have to differ according to different relevant types of crime) an approach merely based on territoriality would not always point to one Member State. The place of commission may lie in more than one Member State, and the number of such cases may grow with increasing linkages among criminals operating beyond national borders, particularly in the areas of organised, financial and economic crime, environmental crime and crime committed through the use of the Internet.

Nevertheless, even in complex cases it is possible to identify a focal point of the relevant conduct of the accused so that often one Member State’s territory can be identified as a “ centre of gravity ” and where this is the case, this can be a strong argument for prosecuting the case there. Thus, territoriality can be considered a useful criterion of major importance, although there is also a need for other criteria, at least as supplementary factors.

Question 10: Should a future instrument on jurisdiction conflicts include a list of criteria to be used in the choice of jurisdiction?

Criteria related to the suspect or defendant

Both in the quoted instruments and in the Eurojust guidelines, various circumstances with regard to the suspect or defendant play an important role as well. In particular, their nationality and residence, or location, the place of arrest or detention, the fact that other proceedings against the same defendant are being carried out in a certain Member State and the prospects for their rehabilitation in case of a sentence to be enforced are factors which can be taken into account. From these factors, as well as from the principle of due process, it follows that one must take into account the circumstances related to the defendant. The burdens and restrictions on a defendant’s freedom which (on aspects related e.g. to family, job, language, finances, and property) go along with criminal proceedings can be limited if the proceedings take place in an area where he ha