EU states can request transfer of criminal prosecutions under new rules

MEPs and the EU Council have struck a deal on a proposed law that will allow the the transfer of criminal proceedings initiated in one member state, to another member state.

With the expansion of cross-border crime, criminal justice in the EU has increasingly been confronted with situations where several member states have jurisdiction to prosecute the same case. This is particularly true for crimes committed by organised criminal groups.

Rules on the transfer of criminal proceedings help clarify which member state would be best placed to conduct a criminal proceeding.

There is currently no specific EU instrument regulating the transfer of proceedings. Instead, member states must rely on the 1959 European Convention on Mutual Assistance in Criminal Matters.

The law will be critical in ensuring that the best-placed country investigates or prosecutes a criminal offence and in preventing unnecessary parallel proceedings – of the same suspect – in different EU member states.

Belgian MEP Assita Kanko (ECR) was lead rapporteur on the law. The provisional agreement has yet to be voted on by member states’ permanent representatives (Coreper) and the Parliament’s justice committee for endorsement. If approved, the text must then adopted by both the EP and member states in the Council.

The rules safeguard the fundamental rights of the suspect or accused in the process of transferring criminal proceedings from one country to another.

But they help prevent impunity in cases when the surrender of a person to another member state under a European Arrest Warrant is refused. Transfer of proceedings to the country where the accused is present, would guarantee that the person would still face justice.  

The criteria for a member state request to transfer proceedings will be when: the criminal offence, or a substantial part of it, was committed on its territory; one or more suspects or accused are nationals or residents in that member state, or are present in the member state to which the proceedings are to be transferred; evidence is located in the requesting member state; when there are ongoing criminal proceedings in respect of the same or other facts against the suspect or accused person in the member state which would become responsible for the proceedings.

Requested countries than have a 60-day maximum, with a possible 30-day extension, to accede to the request.

They can refuse the transfer of proceedings if under its law it is not possible to bring or pursue criminal proceedings in relations to the facts underlying the request for the transfer. This would for instance be the case if the conduct in connection with which the request was made does not constitute a criminal offence under the law of the requested state.

Suspects must be informed about the intention to transfer proceedings and should be given the opportunity to provide an opinion about this transfer. They will have the right to an effective legal remedy against the decision of a country to accept the transfer of criminal proceedings. They will be able to exercise this right in the country to which the criminal proceedings are transferred.