Resolving any conflict of jurisdiction will most likely be influenced by a consideration of which jurisdiction is best placed to prosecute. This will typically entail a prosecution-oriented / crime control perspective only.
The circumstances specified in the CJ Framework Decision and in the guidelines published in the Eurojust Annual Report 2003 (“the Eurojust Guidelines”) will be taken into account:
(i) the place where the major part of the criminality occurred;
(ii) the place where the majority of the loss was sustained;
(iii) the location of the suspected or accused person and possibilities for securing their surrender or extradition to other jurisdictions;
(iv) the nationality or residence of the suspected or accused person,;
(v) significant interests of the suspected or accused person;
(vi) significant interests of victims and witnesses;
(vii) the admissibility of evidence;
(viii) any delays that may occur.
It is your role as a defence lawyer to consider, together with the ISL and where applicable a lawyer in a third EU Member State, which is the most appropriate jurisdiction for your client to be prosecuted in. You will then need to seek to convince the relevant authorities to adopt a decision in conformity with your client’s interests.
From the defence perspective, the following aspects, amongst others, should be considered:
(i) the client’s language and the availability and quality of interpretation and translation;
(ii) the cost of the defence and the availability of proper legal aid funding;
(iii) the length of proceedings;
(iv) the likelihood of obtaining alternatives to pre-trial detention and the maximum length for pre-trial detention;
(v) the chances of mounting an effective defence and obtaining an acquittal or of receiving a sentence not depriving one’s liberty;
(vi) the availability of plea bargaining schemes, including alternatives to prosecution;
(vii) the applicable sanctions and confiscation measures;
(viii) the applicable exclusionary rules;
(ix) prison conditions;
(x) early release possibilities (although these can be considered later on with a view to requesting transfer for the purposes of serving the sentence).
All of these may fall within the category of “significant interests of the suspected or accused person” mentioned in the CJ Framework Decision and in the Eurojust Guidelines.