Jurisdiction and Applicable Law in the EU Directive on Transfer of Proceedings in Criminal Matters
| Date | 01 September 2010 |
| Author | Maria Ludwiczak |
| Published date | 01 September 2010 |
| DOI | 10.1177/203228441000100306 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 1, Issue 3, 2010 343
JURISDICTION AND APPLICABLE LAW
IN THE EU DIRECTIVE ON TRANSFER OF
PROCEEDINGS IN CRIMINAL MATTERS
M L*
ABSTRACT
e EU Direc tive on Transfer of proc eedings in criminal matters will complete the range
of modes of cooperation between the States of the European Union. Transfer of
proceedings comes within the scope of mutual tr ust and recognition in the EU. It has the
virtue not only of speeding up criminal procedures but also of achieving better social
rehabilitation of the convicted person .
i s contribution sets a background for the understanding of the Directive and prov ides
comments on competence and applicable law, the two most controvers ial aspects of the
transfer of proceedings under the D irective.
Keywords: applicable law; competence; transfer of proceedings
e Directive on the Transfer of proceedings in criminal matters (hereina er “the
Directive”) will soon join the already wide range of modes of cooperation that exist
between the Europea n Union Member States. ese already include: mutual a ssistance
between the EU Member States,1 extradition (European Arrest Warrant),2 mutual
recognition of criminal decisions provided for by the Tampere and e
Hague Programmes3 and the taking account of these decisions in new criminal
* Research assistant, PhD candidate, University of Geneva. e aut hor wishes to thank Pr of. Robert
Roth for his valua ble remarks and his suppor t throughout the writ ing of this contribut ion.
1 Convention established by t he Council in accordance w ith Article 34 of the Treaty on Europe an
Union, on Mutual Assista nce in Criminal Mat ters between Member States of the Europ ean Union,
29 May 2000, 20 00/C 379/02.
2 Applied in the most simpli ed way to the thirteen o ences listed in Art. 2 §2 of t he Framework
Decision on the Europ ean arrest warrant and t he surrender procedures betwee n Member States,
13 June 2002, 200 2/584/JHA.
3 Conclusions of the Tampere Europe an Council of 15 and 16 October 199 9, §33–37, and e Hague
Programme: Ten priorit ies for the next ve years. e Partnersh ip for European renewa l in the Field
of Freedom, Secur ity, Justice, COM(2005) 184 nal (see in particu lar §9, according to which
Maria Ludwicz ak
344 Intersentia
proceedings.4 e level of cooperation obviously missing in criminal matters in the
EU is the transfer of proceedings in view of consolidation when two States conduct
proceedings in parallel, or in view of better administration of justice when another
State is a more appropriate forum for conducting proceed ings.5
It seems irrational to systematically require of a State to wait for a decision in
another State, as it will have to take the latter’s ndings into account when launching
its own proceedings agai nst the same person. In these cases, a bet ter solution would
be to join the two procedures in the State where it would be most adequate. In the
same way, it appears that in many situations, proceedings could be car ried out more
e ciently elsewhere than in the State which is ter ritorially competent, for example in
the State of residence of the accused, t hus enabling social rehabilitation, or at the place
where most of the evidence is collected, thus speeding the procedure up by avoiding
the necessity of transposing evidence.6 Also, a transfer of proceedings could be used
as an alternative to the European Arrest Warrant in cases where it would be more
e cient than to transfer persons.
Work in view of regulating the transfer of proceedings between the EU Member
States has been underway for some ti me. e initiative for such a reg ulation was taken
by sixteen States in June and July 2009.7 First projected as a framework decision, the
dra will have to be turned into a direc tive to take the entry into force of the Lisbon
Trea ty in to acc ount .
A er some preliminary remarks setting out the basics that seem necessary to
understand what a transfer of proceedings implies (1), we will examine two speci c
points of the Directive which raise a number of issues: competence8 (2) and the
applicable law (3).
“traditional mutual assistance” should be replaced with “new instruments based on mutual
recognition”). e principle of mutual recog nition of crim inal decision s is now part of the Sto ckholm
programme for 2010–2014, Counci l of the European Union, 2 Dec ember 2009, 17024/09, e
Stockholm Prog ramme – An open and secure Euro pe serving and protecti ng the citizens. See in
particu lar §1.2.1 (mutual trust) and §1.2.5 (mutua l recognition).
4 Framework Decision on tak ing account of convic tions in the Member Stat es of the European Union
in the course of new c riminal procee dings, 2008/675/JHA , 24 July 2008.
5 See on this point Meijers C ommittee, Obser vations on the Dra Framework Decision on t he
Pre vent ion a nd Se tt leme nt of c on ict s of e xerc ise o f jur isd ict ion i n cr imi na l pro ceed ing s an d on t he
dra Framework Decision on the Transfer of proceedings in criminal matters, 25 August 2009
(herea er: Meijers Obser vations), “Transfer of proceed ings”, §1. See also Explanator y Report on the
Dra Council Fr amework Decision on the tra nsfer of proceedings in cri minal matters, C ouncil of
the E urope an Union , 3 July 2 009, 11119/ 09 (her ea er: Expl anatory Report Framework Decis ion),
“Background ”.
6 Nevertheless, in su ch cases the possibil ity of obtaining ev idence through other met hods of mutual
assistance should be taken into account, see Dra […] on Transfer of proceedings in criminal
matters, 26 Novembe r 2009, 16437/1/09 (herea er: Dra Directive), §12bis.
7 See Dra Di rective, “Introduct ion”, §1.
8 e terms “competence” and “ jurisdic tion” are to be considered as e quivalent for the pur pose of this
contribution and w ill be used alter natively.
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