Criminal investigations: Council and EP reach agreement

The Belgian presidency of the Council and European Parliament negotiators concluded a provisional deal on a proposed EU law related to the transfer of proceedings in criminal matters.

The law puts in place rules which regulate the conditions under which criminal proceedings initiated in one member state may be transferred to another member state. 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. The law will therefore contribute to fight cross-border crime more effectively.

Effective crime-fighting also means that countries within the EU cooperate in order for the criminal investigation to happen in the country that is best placed to serve justice. This law will be a great step forward for this to happen.

Paul Van Tigchelt, Belgian Deputy Prime Minister and Minister of Justice and the North Sea

The rules on which the Council and European Parliament agreed will also improve the respect of fundamental rights of the suspect or accused in the process of transferring criminal proceedings from one country to another.

In addition, the regulation will 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 rules (to the country where the accused is present) would guarantee that the person would still face justice.  

Common rules for the transfer of proceedings

In the future, the authorities of a country will decide to request the transfer of proceedings (to another member state) on the basis of a list of common criteria. These criteria include:

• the criminal offence has been committed on the territory of the member state to which the proceedings are to be transferred or most of the effects of the offence or a substantial part of the damage occurred in that member state
• one or more suspects or accused persons are nationals of or residents in that member state
• one or more suspects or accused persons are present in the member state to which the proceedings are to be transferred
• most of the evidence relevant to the investigation or the majority of the relevant witnesses are located/reside in that member state
• that 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

The country that has been asked to accept the transfer of proceedings must inform the country that wishes to transfer these proceedings about its decision – whether to accept or refuse the transfer – no later than 60 days after it has received the request. This time limit may be extended by a maximum of 30 days.

A country should 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.

Rights of the victim and accused/suspect

The regulation also comes with obligations with respect to the rights for the suspects and accused persons as well as victims when deciding on a transfer.

The country in which the criminal investigation is taking place and which wishes to transfer the proceedings to another country must for instance give due consideration to the legitimate interests of the suspect or accused person as well as the victim. The new law also foresees an obligation that the accused or suspect and the victim must be informed about the intention to transfer proceedings and should be given the opportunity to provide an opinion about this transfer. They are furthermore informed during other relevant phases of the procedure.

Right to an effective legal remedy

Suspects, accused persons and victims 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.

There will be a time limit for seeking legal remedy of no longer than 15 days from the date of receipt of the decision to accept the transfer of criminal proceedings. The final decision on the legal remedy must be taken without undue delay and, where possible, within 60 days.

Next steps

The provisional agreement will now be submitted to the member states’ representatives within the Council (Coreper) and to the Parliament’s justice committee for endorsement. If approved and following revision by lawyer-linguists, the text will then need to be formally adopted by both institutions, before it can be published in the EU’s Official Journal and enter into force. The regulation will start to apply two years after its entry into force.

Background

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. They also are instrumental to respect the fundamental rights of the accused.

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.

Assita Kanko (ECR/BE) was the European Parliament’s rapporteurs on this file.