The European Justice Ministers, meeting at the EU Council in Brussels on Monday 4 December, reached a political agreement (‘general approach’) by the EU Council on the proposal for a regulation on the transfer of criminal proceedings between Member States.
Presented by the European Commission in April (see EUROPE 13157/12), this text responds to a desire for simplification in order to effectively combat cross-border crime in the face of an increase in the number of cases involving the jurisdiction of several Member States.
The main aim of this proposal is to minimise the risks of duplication of judicial proceedings or, conversely, to counter situations of impunity in the event of extradition being refused under a European arrest warrant. In addition, this initiative aims to ensure that criminal proceedings are conducted in the Member State best able to handle them, typically the one where the majority of the offence took place.
The ministers reached a consensus on a series of rules for the transfer of criminal proceedings between member countries. This framework should not only improve the protection of fundamental rights during the transfer of criminal proceedings, but also enhance their effectiveness and legal certainty.
It will also have the effect of preventing cases of impunity linked to the refusal to transfer a person to another Member State in application of a European arrest warrant.
Criteria for the transmission of procedures. Under this regulation, the authorities in one country can request the transfer of criminal proceedings to another country, based on certain common criteria. Such a transfer may be considered if the offence took place on the territory of the Member State to which the proceedings are proposed to be transferred.
In addition, if one or more suspects or accused persons are nationals or residents of that State, or if they are currently in that State, this reinforces the case for a transfer. Another important criterion is the location of the majority of the relevant evidence or witnesses, which, if located in the Member State in question, may further justify the transfer of the proceedings. The regulation also stresses the importance of taking into account the rights of suspects, defendants and victims when deciding whether to transfer proceedings.
The Member State requested to transfer criminal proceedings is obliged to communicate its decision to the requesting State, whether it agrees or refuses, within a maximum of 60 days from receipt of the request for transfer. This period may be extended, but must not exceed a further 30 days.
Right to an effective legal remedy. Suspects, defendants and victims will have the right to an effective judicial remedy against the decision 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.
The appeal period will not exceed 20 days from the date of receipt of the decision to accept the transfer of the criminal proceedings. The EU Council agreed that the final decision on the legal remedy should be taken without undue delay and, if possible, within 60 days.
On this issue, Croatia and Slovakia have expressed concerns about the possibility of an appeal against the decision to transfer criminal proceedings, fearing that this would make the process too long and complex.
In addition, several Member States, such as Slovakia and the Czech Republic, have raised concerns that the regulation could make criminal proceedings more complex rather than simpler.
On the basis of the position adopted, the EU Council, once it has decided on its position, will enter into negotiations with the European Parliament, where Assita Kanko (ECR, Belgian) has been given responsibility for the dossier in the Committee on Civil Liberties, Justice and Home Affairs. (Original version in French by Nithya Paquiry)