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Standard training programme in judicial cooperation in criminal matters

within the European UnionVersion: 3.0

Last updated: 31.10.2012

The European JudicialTraining Network

With the support of the European

Union

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Training organised by(name of training organiser)

on (date) at (place)

Title (of the training/ module)

logo of the training organiser

With the support of the European

Union

The European JudicialTraining Network

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Module 7: Module 9

Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem

principle

Version: 3.0 Last updated: 31.10.2012

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Contents

I. Introduction: the concept of ‘conflict of jurisdiction’ and ascertaining such conflicts

II. Preventing conflicts of jurisdiction: coordination of prosecution and setting criteria for the allocation of competence

III. Transfer of proceedings and the laying of information for the purpose of proceedings

IV. The resolution of conflicts of jurisdiction: the ne bis in idem principle

>Module 9: Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle

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I. Introduction

1. Concept of ‘conflict of jurisdiction’• Positive and negative conflicts of jurisdiction• Conflicts of jurisdiction in the strict and in the broad sense2. Ascertaining conflicts of jurisdiction

>Module 9: Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle

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2.1. Lack of binding rules2.2. Eurojust’s assistance2.3. The assistance of the European Judicial Network2.4. The Eurojust guidelines2.5. Framework Decision of 30 November 2009 on the prevention and

settlement of conflicts of jurisdiction in criminal proceedings 2.6. Examples of provisions in sectoral instruments

II. Preventing conflicts of jurisdiction

>Module 9: Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle

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Existing instruments: - Council of Europe: European Convention of 15 May 1972 on

the transfer of proceedings in criminal matters and Article 21 of the 1959 Convention on mutual assistance

- European Union: Agreement of 6 November 1990 on the transfer of proceedings in criminal matters

Draft Council Framework Decision on the transfer of proceedings in criminal matters

III. Transfer of proceedings

>Module 9: Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle

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4.1. Sources4.1.1 Legislative sources Ne bis in idem as grounds for refusal of cooperation

- Instruments of the Council of Europe: 1957 Extradition Convention

- Instruments of the European Union: cf. Framework Decisions applying the principle of mutual recognition

>Module 9: Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle

IV. The resolution of conflicts of jurisdiction: ne bis in idem

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Ne bis in idem as a means of cooperation and as a principle- Within the Council of Europe: cf. European Convention of

1970 May 1970 on the international validity of criminal judgments

- Within the European Union (including Schengen): in particular- Articles 54 to 58 of the CISA - Article 50 of the Charter of Fundamental Rights

Module 9: Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle

IV. The resolution of conflicts of jurisdiction: ne bis in idem

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4.1.2. Case-law sources: a) 11 February 2003, Joined Cases C-187/01 and C-385/01, Gözütok and

Brüggeb) 10 March 2005, Case C-469/03, Miraglia c) 9 March 2006, Case C-436/04, Van Esbroeckd) 28 September 2006, Case C-150/05 van Straaten e) 29 September 2006, Case C-467/04, Gasparini f) 18 July 2007, Case C-288/05, Kretzinger g) 18 July 2007, Case C-367/05, Kraaijenbrinkh) 11 December 2008, Case C-297/07, Bourquaini) 22 December 2008, Case C-491/07 Turansky j) 16 November 2010, Case C-261/09, Mantello.

Module 9: Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle

IV. The resolution of conflicts of jurisdiction: ne bis in idem

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4.2. Scope of the ne bis in idem principle4.2.1. The transnational scope of the principle: - Extended to the territory of the Union:

Article 54 of the CISA: ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Article 50 of the Charter of Fundamental Rights of the European Union: limitations covered by Article 52

- Extended to judgments by third countries: e.g. Article 4(5) of the EAW FD

>Module 9: Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle

IV. The resolution of conflicts of jurisdiction: ne bis in idem

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4.2.2The material limitations of the principlea) The definition of idem => Cf. the case-law of the CJEU: van

Esbroeck, van Straaten, Gasparini, Kretzinger and Kraaijenbrink judgments

b) Criteria for the application of ‘bis’ Þ Which decisions are likely to apply bis? Cf. the case-law of the CJEU:

Gözütok and Brügge, van Straaten, Gasparini, Miraglia and Turansky, Mantello judgments

Þ Conditions for enforcement of the penalty in the event of conviction. Cf. the case-law of the CJEU: Kretzinger and Bourquain judgments

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IV. The resolution of conflicts of jurisdiction: ne bis in idem

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c) Exceptions to the rules In cooperation instruments

Exceptions mainly relate to: • the place where the offence is committed, • the public nature of its perpetrator, • or the public nature of the target of the offence.

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IV. The resolution of conflicts of jurisdiction: ne bis in idem

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Article 55(1) of the CISA:Any Contracting Party may declare that it is not bound by the ne bis in idem principle in one or more of the following cases:

‘a) where the acts to which the foreign judgment relates took place in whole or in part in its own territory; in this [...] case, however, this exception shall not apply if the acts took place in part in the territory of the Contracting Party where the judgment was delivered;

b) where the acts to which the foreign judgment relates constitute an offence against national security or other equally essential interests of that Contracting Party;

c) where the acts to which the foreign judgment relates were committed by officials of that Contracting Party in violation of the duties of their office’.

>Module 9: Conflicts of jurisdiction, transfer of proceedings and the ne bis in idem principle

IV. The resolution of conflicts of jurisdiction: ne bis in idem

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IV. The resolution of conflicts of jurisdiction: ne bis in idem

Article 52 of the Charter

‘limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

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