Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings

To download the European Commission's Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings in PDF please click here.

The Green Paper is accompanied by a staff working paper which contains most of the analysis that forms the basis of the debate. It is correctly only available in English and can be found at:
http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_criminal_matters/l16011_en.htm

Please click here for the response by ECBA to the Green Paper and the Working Paper on Conflicts of Jurisdiction and the Principle of Ne Bis In Idem in Criminal Proceedings presented by the European Commission.

The following note is designed to give an overview of the Green Paper and the points raised by the European Commission in its introduction. In addition to the list of questions that can be found in the Green Paper we have also noted some questions/queries for comment as well.

We apologise for the short notice of this paper, however although the Green Paper was “adopted” in December the documents were not available for sometime after. Thank you to Julia Bateman for the work she has done in preparing this paper.

Whilst the Commission has put this topic out to public consultation and a significant amount of research and analysis is presented in the annex, it is worth noting that the Commission intends to bring forward a legislative proposal on this in second half of 2006. The Consultation period is much shorter than normal (3 rather than 6 months) with responses required by 31 March 2006.

Useful documents

Original Greek Proposal

Previously a proposal had been put forward by the Greek Presidency on a framework decision on ne bis in idem. Negotiations on this were halted. The official version is that the Council were waiting for the Commission’s work in this area, however our understanding is that no agreement could be reached on the definition of what is to be understood under idem or “same facts” and also lis pendens.
Click here for the Hellenic Proposed Framework Decision on the application of the "ne bis in idem"

Council text April 2004

http://register.consilium.eu.int/pdf/en/03/st16/st16258.en03.pdf
For the Eurojust “Guidelines for deciding which jurisdiction should prosecute” click here.

The ECBA response will concentrate on the impact this proposal may have on the rights of the accused, suspect or defendant. Members are also encouraged to work with their national associations to raise awareness of this proposal and to participate in the consultation process.

A. Background and current state of play

1) In this Green Paper, the Commission outlines the possibilities for the creation of a mechanism which would facilitate the choice of the most appropriate jurisdiction in criminal proceedings, and also for a possible revision of the rules on ne bis in idem. The Commission paper starts from the premise that:

a) Crime is becoming more international and therefore EU criminal justice is increasingly confronted with situations where several Member States have criminal jurisdiction to prosecute the same case.

b) Multiple prosecutions can affect the efficiency and duration of the respective proceedings. Moreover, multiple prosecutions can impose considerable additional burdens on the individuals involved (accused, witnesses, victims, etc). As a consequence, the concerned individuals can be subjected to disproportionate restrictions as parallel (and often repeated) national prosecutions can limit their freedom of movement and impair their rights and interests.

c) Multiple prosecutions are detrimental to the rights and interests of individuals and can lead to duplication of activities. They increase psychological burdens and the costs and complexity of legal representation.

d) In a developed area of freedom, security and justice it seems appropriate to avoid, where possible, such detrimental effects; by limiting the occurrence of multiple prosecutions on the same cases.

e) An adequate response to the problem of (positive) conflicts of jurisdiction would be to create a mechanism for allocating cases to an appropriate jurisdiction. Where prosecutions are concentrated in a single jurisdiction, an issue of ne bis in idem would no longer arise.

Question: Do we accept these premises – any comments broadly?

Question: Is there a need for such an instrument – what situation is it trying to remedy? Proportionality of EU response?

2) Currently, there are no binding rules at EU level which adequately deal with conflicts of jurisdiction in criminal matters while proceedings are ongoing. The current EU provisions neither require Member States to take concrete steps to avoid/solve conflicts of jurisdiction cases nor do they provide for a procedure/mechanism which would assist them in dealing with such questions. National authorities are free to institute their own parallel prosecutions on the same cases.

Question: How does it work at present? In theory/practice? Do you have statistical and/or anecdotal examples of problems for the accused with multiple problems?

3) 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” or Schengen Convention) (at page 58) However, this principle does not prevent conflicts of jurisdiction while multiple prosecutions are ongoing in two or more Member States and can lead to a situation of “first come first served” in terms of preference given to which ever jurisdiction can take a final decision first. The ne bis in idem principle can only come into play, by preventing a second prosecution on the same case, if a final decision which bars a further prosecution (res judicata) has terminated the proceedings in a Member State.

Question: Do you know of any cases where Schengen double ne bis in idem provision been raised?

4) An adequate response to the problem of (positive) conflicts of jurisdiction would be to create a mechanism for allocating cases to an appropriate jurisdiction. Where prosecutions are concentrated in a single jurisdiction, an issue of ne bis in idem would no longer arise. Moreover, such a mechanism would complement the principle of mutual recognition, which provides that a judicial decision taken in one Member State is recognised and - where necessary – enforced by other Member States.

B. Creating a mechanism for the Choice of Jurisdiction

5) The Green Paper sets out the perquisites as regards establishing a mechanism for choice of jurisdiction:
- There should be a balanced approach with due respect for rights of individuals concerned.
- Need for competent authorities to be aware of proceedings and/or related decisions in each others’ jurisdiction. Commission says that they should be allowed, and perhaps even be obliged, to exchange the relevant information.

Question: what issues are raised re rights of the accused?

- Once competent authorities 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.

Comment: very big development – makes the decision on location of prosecution “European” and overrides domestic /constitutional provisions. This will inevitably lead to a debate on legal basis/EU competence to do such a thing. National sovereignty issue in terms of right to prosecute. How will this impact on your current national law on the decision to prosecute?

6) The Commission notes that 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. The suggestion is to develop an exception to the application of this principle on the basis that this principle is satisfied when another Member State prosecutes such a case.

C. Procedure

7) The Commission puts forward the following procedural steps in terms of setting up a mechanism for allocating cases to an appropriate jurisdiction. Commission puts forward the proposed format as follows:

- Step 1: identification and information of “interested parties”.

(a) National authorities of a Member State which has initiated or is about to initiate a criminal prosecution ("initiating State") notes that the case demonstrates significant links to another Member State. They inform the competent authorities of that other Member State, in due time.

Question: what factors indicate “significant links to another Member State”? What does due time mean?

(b) The obligation applies 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.

(c) The informed authorities indicate their interest in prosecuting the case in question, to be declared within a fixed time period. However, the system could also allow for reactions outside the deadline on an exceptional basis. If no Member State expresses an interest, the initiating State could continue with the prosecution of the case without further consultation – unless new facts change the picture.

Question: and then what…start the process all over again?

- Step 2: consultation/discussion

(a) Scenario A: two or more Member States are interested in prosecuting the same case. Respective competent authorities should then be able to examine together the question of the “best place” to prosecute the case. A duty to enter into discussions could be created. Means of communication – direct contacts/Eurojust/other Union mechanisms of assistance – i.e. European judicial network.

(b) Early consensus could be met on the choice of the most appropriate jurisdiction to prosecute a case which raises issues of conflicts of jurisdiction. National authorities will close or halt their proceedings voluntarily (or will refrain from initiating proceedings), while another authority would initiate or continue with its proceedings on the case. Competent authority now charged with prosecution would proceed under national law.

(c) A binding agreement could be secured. This would ensure legal certainty and avoid the reopening of a debate on jurisdiction. An EU model agreement could be established which could, inter alia, provide common rules for the denunciation of such agreements.

- Step 3: dispute settlement/mediation

(a) Scenario B: agreement can not easily be reached. A dispute mechanism will be necessary. Structured dialogue between the interested parties would allow for an objective consideration of the interests involved.

(b) EU level mediator body is proposed to assist in reaching voluntary agreement. Eurojust is put forward as an option as well as the possibility to create a new body for dispute resolution, for instance a board or panel composed of senior national prosecutors and/or judges.

(c) Suggestion that dispute settlement procedure should be compulsory after a period of time has elapsed in step 2 - to ensure that cases of disagreement will be promptly transferred to an EU assisted stage.

What are the consequences of delay in terms of investigation and impact on the accused?

(d) Where a consensus is reached in step 3, the competent authorities should then have the same options as in step 2 - voluntary halting of proceedings in some Member States with a view to prosecution in another one, or conclusion of a binding agreement.

8) The Commission argues that a sound adherence to the rules of the suggested three-step mechanism, combined with a set of criteria for the choice of jurisdiction as outlined below is likely to lead to a consensus in many, if not most cases. It can be established in the short term, and may be considered sufficient unless further experience would reveal a need for further steps. In the absence of a consensus, the ne bis in idem principle would come “back” into play.

Query: so therefore we resort to the current situation where multiple prosecutions take place and then ne bis in idem under Schengen is raised to protect the accused?

- Step 4: Possible additional step: binding decision by an EU body?

(a) Consideration is given to whether a body at EU level should be empowered to take a binding decision as to the most appropriate jurisdiction. A new body would have to be set up, since the roles of a mediator and taking binding decisions do not appear compatible. Secondly, difficult questions on the judicial review of a decision on EU level would arise, as outlined hereafter. This additional step would however be very difficult to realise with the current Treaty framework.

Query: There is no EU competence to restrict national prosecution powers. This appears to go much further than “judicial co-operation” and mutual recognition as foreseen under Title IV of the Treaty on European Union.

- Step 5: Role of the court – “judicial review”

9) The Green Paper makes reference to some form of judicial review or oversight in relation to the designated jurisdiction. It is argued that when a case gets to trial the court will examine whether they have the jurisdiction to try it. There could be an opportunity for the court to examine whether the appropriate forum has been chosen. The paper states that a full analysis of every aspect is not feasible but questions of due process and reasonableness could be raise.

10) Green Paper argues that on the request of concerned individuals, a judicial review of jurisdiction allocations seems to be necessary, at least, when a case is allocated to a specific jurisdiction through a binding agreement.

Questions: If judge decides that it is not an appropriate forum what happens? Should the accused be able to make representations? What impact would this decision have on the accused?

Would court take decision on which is “best” forum or just examine whether they had jurisdiction?

D. Role of individuals

Pre-trial phase

11) Discussion is focused on consultation among the competent prosecuting authorities – certainly at pre-trial stage with no input from individuals. It is argued that discussing jurisdiction issues with the concerned individuals might often reveal facts which could jeopardise a prosecution or affect the rights and interests of victims and witnesses. Whether such a risk is present in a specific case could probably be left to be decided by the national courts.

12) If no such risk is identified, the competent authorities could be required to promptly inform the defence and the concerned victims on the determination of the most appropriate jurisdiction. In any case, the concerned individuals will have to be informed of the main reasons for the choice of a certain jurisdiction at the latest when an indictment is being sent before a court.

Trial phase

13) In contrast to the pre-trial phase at the trial phase (and/or at an intermediary phase) a national court which receives an indictment usually examines whether it has jurisdiction to try the case. The Green Paper considers whether an EU provision could require the jurisdiction which is designated via the mechanism to examine whether it is an appropriate forum for dealing with the case.

E. Priority for prosecution in the “leading” Member State

14) The Green Paper discusses the question of the feasibility of an EU provision that obliges Member States to concentrate proceedings on the same case in one “leading” jurisdiction. Arguing that in addition to the procedural mechanism as set out above a priority rule could be laid down.

Question: What impact would such a ‘priority role’ have?

F. Relevant Criteria

15) The Green Paper discusses what criteria should be used by the Member States in choosing the leading jurisdiction. Although criteria are proposed it is noted that the Commission states that “relevant criteria …are to be applied and weighted on a rather flexible case-by-case approach, i.e. the competent authorities would need to have a considerable scope of discretion.”

Question: Is this to be welcomed? Will there be such discretion to make any criteria meaningless and lose legal certainty.

16) The Commission states that criteria should be objective and could be listed in a future EU instrument. The Green Paper asks whether the list should be hierarchical/sequential etc. Proposed criteria are: - territoriality;
- criteria related to the suspect or defendant;
- victims’ interests;
- criteria related to State interests; and
- other criteria related to efficiency and rapidity of the proceedings.
- Factors which should not be of relevance could also be identified.

Question: What is your view on the criteria? How will it work in cases with a number of defendants from a number of jurisdictions where the offence was committed in a number of Member States? How should the fact of a statute of limitation having expired on a Member State impact on a decision?

17) As a further step, Member States could agree on some basic principles on the prioritisation or sequencing within the list of criteria, if this proves to be necessary. On the other hand, a more flexible approach could be preferred. The need for general guiding principle for jurisdiction allocation is identified.

G. The Principle of Ne bis in Idem

18) Ne bis in idem is a principle in national laws – ECHR/International Convenant on Civil and Political Rights 1976. On a pan-European level articles 54 to 58 of Convention Implementing the Schengen Agreement are the key provisions relating to ne bis in idem. CISA is currently binding throughout the Schengen Area, in the ten EU Member States which acceded in 2004, in Iceland and Norway and in the United Kingdom; an extension to Ireland should follow soon.

19) The Commission argues that if a mechanism can be established that would lead to balanced choice of jurisdiction, instead of conferring an exclusive effect to the “fastest” prosecution (“first come, first served”), discussions on ne bis in idem could be re-launched with an increased prospect of success. The Framework Decision proposal negotiations were halted because agreement could not be reached.

20) The Green Paper discusses the need to clarify certain elements and definitions in relation to ne bis in idem - for instance regarding the types of decisions which can have a ne bis in idem effect, and/or what is to be understood under idem or “same facts”. The issue of derogations will also be raised as well. Currently, Article 55 Schengen enables Member States to provide for exceptions, which are related to interests in prosecuting specific cases in a certain jurisdiction (e.g. territoriality, national security offences or acts of officials of a Member State).

21) The Green Paper also raises the question of whether a sentence has to have been enforced. In case of a conviction the principle currently applies only where the imposed penalty “has been enforced, is actually in the process of being enforced or can no longer be enforced…” This condition was justified in a traditional system of mutual assistance, where enforcing a penalty in other Member States sometimes proved to be difficult. It is questionable whether it is still needed in an area of freedom, security and justice, where cross-border enforcement now takes place through the mutual recognition EU instruments.

H. European Court of Justice Cases

22) The ECJ has developed important guidelines for the interpretation of the CISA, which shall be the guiding principles to any further steps by the EU legislator as regards the EU wide principle of ne bis in idem. The ECJ has jurisdiction in criminal law cases to hear a preliminary reference from a national court where the Member State has conferred jurisdiction on the ECJ. Article 35 TEU.

23) The following cases are of note in relation to the European Court of Justice. More details can be found in the annex/staff working paper to the Green Paper at page 48.

Gözütok & Brügge, Joined Cases C-187/01 and C-385/01
Miraglia (Case C-469/03),
Hiebeler (Case C-493/03)
Further preliminary rulings are to be expected in Case C-436/04 Van Esbroeck (Case C-436/04), Gasparini Case (C-467/04), Van Straaten (Case C – 150/05), Bouwens ( C-272/05) and Kretzinger ( C-288/05).

Louise Hodges,
ECBA

Julia Bateman,
Law Society Brussels Office

January 2006.