Conflicts of Criminal Jurisdiction: Roadmap to Legislation at EU Level Overview & Horizontal Mechanism Prof. Dr. Katalin Ligeti EPRS & ELI Roundtable Brussels, 4 December 2017

Why do conflicts of jurisdiction matter? Conflicts of jurisdiction in criminal law may be detrimental to: The proper administration of justice The fundamental rights of the individual, both the defendant and the victim

What is a conflict? When may one arise? Concrete conflicts between authorities and potential conflicts of overlapping jurisdictions. Positive and negative conflicts. Parallel proceedings and multiple proceedings. Are parallel investigations admissible? To a certain extent, parallel investigations may appear both unavoidable and necessary to deal with cross-border crimes. From the perspective of the defendant (and in a certain sense also from that of the victim), however, they are not a “neutral” or “painless” situation. There is a need to strike a balance

Conflicts of Jurisdiction in the AFSJ: the state of the art Uneven ambitions… the existing acquis is essentially characterised by a pre-Lisbon “piecemeal” approach …and modest outcomes lack of a clear and transparent mechanism for the allocation of cases to jurisdictions or triggering of jurisdiction in the EU.

A contradictory acquis: Several FDs promote extraterritorial jurisdiction (active personality passive personality principle, protective principle) and, in consequence, overlapping jurisdictional claims. The only “hard law”-solution offers non-binding consultation procedures. Soft law (Eurojust Decision and Eurojust Guidelines, updated 2016) provide for a set of criteria and a mechanism to choose the best forum for prosecution.

The need to rethink criminal jurisdiction post-Lisbon The “first come, first served” approach of ne bis in idem risks producing arbitrary results and overlooks other relevant interests. The present foreseeability of forum choice seems to be in tension with art. 47 EUCFR and the principle of an impartial tribunal previously established by law. Absence of a proper mechanism for the transfer of proceedings. Lack of procedural safeguards. No attention to the European interest.

New legal bases: Art. 82 par. 1b TFEU “The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to: […] prevent and settle conflicts of jurisdiction between Member States” It refers to “measures”. It is not limited to “minimum rules”. It is not subject to the “emergency brake”.

The CJCL Project: Structure Three-year research project (2014-17) Performed by a international Working Group of academics and experts Funded by the FNR Luxembourg and supported by the European Law Institute Involving EU Institutions (EC and EP)

The CJCL Project: Methodology A theoretical comparison with Private International Law; An evidence-based analysis of conflicts of jurisdiction: Interviews with prosecutors at Eurojust and national level Interviews with defence lawyers A policy profile and impact; ELI Cooperation (Positive votes, April 2017) Closing Conference and Book Launch (31 May 2018, Luxembourg) A scenario approach to the new legal framework: Update of the Eurojust Guidelines (…updated in 2016) Horizontal Mechanism Vertical Mechanism Allocation Model

Horizontal Mechanism Consultation between the national authorities in a horizontal setting in order to prevent ne bis in idem situations ensure a non-arbitrary forum. Clear criteria for the choice of forum Possibility for the suspect and the victim to submit their written observations A legal basis to discontinue the proceedings and to transfer the case.

Rationale and added value It is the primary responsibility of the Member States to resolve conflicts of criminal jurisdiction. The horizontal instrument defines the procedure and the criteria to be applied in the consultation procedure - not mere ‘Lisbonisation’ ! It addresses both parallel and multiple proceedings. It grants effective remedy against arbitrary decisions.

Factors to be considered vs. factors not to be considered (Annex) Territoriality Stage of the proceedings/trial-readiness Interests of the Suspect Interests of Victims Need to resort to Mutual Legal Assistance and Mutual Recognition instruments Need for concentration of proceedings Factors not to be considered Diverging rules on evidence Legal Requirements Sentencing Powers

Involvement of the suspect and victim (Article 8 par. 3) Where the concerned authorities agree that it would not jeopardise the investigation, the suspect and the victim are notified about the existence of the consultation procedure; The suspect and the victim have the possibility to submit their written observations on the choice of forum within 15 days of the date of notification “Where the competent authorities of the Member States agree that it would not jeopardise the investigation, they shall inform the suspect or accused and the victims about the consultation procedure and of the possibility to submit written observations within 15 days of the date of such notification.”

Consequences and Transfer of Proceedings (Article 9) Following a decision on the choice of forum: Transfer of the file to the chosen jurisdiction Closing of the case in the not selected jurisdictions Rule on the equivalence of the procedural steps adopted in the transferring Member State “Roll-back” clause (par. 4): “The transferring Member State retains the right to prosecute the case if the competent authority in the receiving Member State neither presents the case to a court for the purposes of prosecution nor takes other measures which would have the effect of a final disposal of the case.”

Judicial Review – Article 10 “Any decision [on the choice of forum] is without prejudice to legal remedies under national law to request judicial review on the choice of forum” It entails a minimal rule, leaving the an and quomodo of judicial control on the choice of forum to national law.

Horizontal Mechanism