New European rules to tackle cross-border crime: Proposal for a Regulation on the transfer of proceedings in criminal matters

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.

Objectives of the proposed Regulation

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.

Procedure for the transfer of proceedings

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.:

• the criminal offence has been committed wholly or partly in the territory of the state that is being requested to take over the proceedings (the “requested State”);
• the suspect or accused is a national of or a resident in the requested State;

• most of the evidence relevant to the investigation is located in or the majority of the relevant witnesses are residing in the requested State; or

• there are ongoing criminal proceedings in the requested State in respect of the same or other facts against the suspect or accused.

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:

• Mandatory refusal grounds – in which case the requested authority must refuse the transfer in whole or in part – include, for example, the situation where the conduct for which the request was made does not constitute a criminal offence under the law of the requested State or if taking over the criminal proceedings would give rise to an infringement of the double jeopardy rule (ne bis in idem).

• Optional refusal grounds – in which case the requested authority may refuse the transfer in whole or in part – include, for example, the situation where there is an immunity or privilege under the law of the requested State which makes it impossible to take criminal action or where the requested authority considers that the transfer is not in the interest of an efficient and proper administration of justice.

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:

• the transfer and admission of evidence gathered in the requesting State;

• the deduction of periods of detention spent in the requesting State; and

• the taking into consideration of maximum sentences set out in the law of the requesting State.

Next steps

The Commission’s proposal is currently being discussed by the Council and the European Parliament. Once the co-legislators reach their respective positions on the subject, the proposal can be negotiated in the trilogue. It remains unclear whether the proposed Regulation will be adopted before the European elections in June 2024. If adopted, the Regulation would apply from two years after its entry into force.