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15 December 2023
As the level of cross-border (organised) criminality continues to rise, EU Member States increasingly need to join forces to ensure that such crimes are being properly investigated and prosecuted. This often requires a transfer of criminal proceedings from one Member State to another. However, at present, there is no common legal framework in the EU to regulate such a transfer of proceedings.
In its EU Strategy 2021-2025 to tackle Organised Crime, the Commission identified this as an issue that required further action. Following up on this strategy, the Commission published a Proposal for a Regulation on the transfer of proceedings in criminal matters on 5 April 2023. With this proposal, the Commission aims to generate more efficient criminal proceedings and to strengthen judicial co-operation in combating cross-border crime.
In the absence of a common EU legal framework to regulate the transfer of proceedings in criminal matters, Member States are currently handling these transfers between themselves, using a variety of legal instruments.
Due, among other matters, to the differences between Member States’ national criminal justice systems, transfers of criminal proceedings have been facing significant legal and practical obstacles. In particular, transfers often get hampered by undue delays and a lack of communication between Member States. Parallel proceedings in different Member States concerning the same facts and the same persons could also give rise to infringements of the fundamental double jeopardy rule (ne bis in idem).
The proposed Regulation seeks to establish a common set of rules to transfer criminal proceedings from one Member State to another in order to fight cross-border crime efficiently and ensure that the best-placed Member State investigates and prosecutes the relevant criminal offences.
Request
A request for transfer of criminal proceedings may be issued where an authority competent for the case concerned (a court, (investigating) judge or public prosecutor, or any other competent authority acting as investigating authority in criminal proceedings and designated as such by the relevant Member States) deems that the objective of an efficient and proper administration of justice would be better served by conducting the relevant criminal proceedings in another Member State.
The proposed Regulation is meant to apply to all transfer requests issued within the framework of criminal proceedings (regardless of the nature of the relevant offences), starting from the time when a person has been identified in a Member State as a suspect or accused of a criminal offence until the conclusion of those proceedings.
The rules on transfer of proceedings do not seek to impose an obligation to request a transfer of proceedings to another Member State. It is only an option for the requesting authority. The requesting authority should examine, on a case-by-case basis, whether a transfer is necessary and appropriate. In doing so, the requesting authority shall take into account a number of criteria set out in the Regulation, e.g.:
In addition, the requesting authority must, before a transfer request is issued, give due consideration to the legitimate interests of the suspect/accused and the victim and ensure that their procedural rights under EU and national law are respected. For instance, the suspect/accused and the victim will be informed about the intended transfer and will be given the opportunity to state their opinion on the request (unless this would undermine the confidentiality of the investigation). Once a decision on the transfer has been made, the suspect/accused and the victim will be informed about the decision and their rights to challenge the decision (see below).
Decision and right to a legal remedy
As a rule, the authority of the requested State must make a decision to accept or refuse a transfer of criminal proceedings it has received without delay and no later than 60 days after the receipt of the request (with some limited possibilities to see this time limit extended). The transfer of proceedings can only be refused on the grounds set out in the proposed Regulation. The proposed Regulation contains a list of mandatory and optional refusal grounds:
If the request to transfer the proceedings is accepted by the requested authority, the suspect/accused and victim will have the right to challenge this decision in the requested State within a period of 20 days from the date of receipt of the information about the decision. When the transfer request is issued after the suspect’s or the accused person’s indictment, the challenge of the decision will have suspensive effect.
Effects
Once the request for a transfer has been accepted, the criminal proceedings will be suspended or discontinued in the requesting State in accordance with its national law. The transferred criminal proceedings will from then onwards be governed by the national law of the requested State. The proposed Regulation contains rules on, among other matters: