Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (30^th November 2009) (“CJ Framework Decision”) defines parallel proceedings as “criminal proceedings, including both the pre-trial and the trial phases, which are conducted in two or more Member States concerning the same facts involving the same person.”

It is not unusual during EAW proceedings for your client to be faced with parallel proceedings in two or more EU Member States for the same facts, i.e. that there is a conflict of jurisdiction. The conflict may arise between the Executing and Issuing Member States, or between the Issuing State and a third EU Member State, which might involve competing EAWs (Article 16 EAW).[23]

As explained above (see section E.2), conflicts of jurisdiction may give rise to an optional ground for refusal where one of the proceedings is pending in the Executing State (Article 4(2) EAW FD).

EU law has a very underdeveloped legal framework on this topic. The CJ Framework Decision only establishes information sharing and consultation obligations between the Member States, as opposed to binding criteria or procedures through which the jurisdiction of prosecution must be decided.

It should be noted that conflicts of jurisdiction are an issue dealt with between prosecuting authorities where the defence may not have had an opportunity to intervene. Therefore, the EU legal arguments suggested below might not have been tested and there is no EU case law to provide guidance on the topic.

Ultimately it should always be kept in mind that solving conflicts of jurisdiction in parallel proceedings against the same person for the same facts aims primarily at preventing the violation of the ne bis in idem principle, which is a fundamental right laid down in Article 50 CFR (see section E.1).

 

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[23] Conflicts with third states will not be addressed here and are in principle a matter for national law.

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.

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.

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.

After you have determined, together with the ISL lawyer and, where applicable, a lawyer in a third EU Member State, the best place for your client to be prosecuted, you should consider whether it is appropriate to make representations to the relevant authorities.

Since the CJ Framework Decision does not provide binding criteria on how the jurisdiction should be chosen, and Article 50 CFR has not been interpreted as proscribing the existence of parallel proceedings, ultimately the decision is one for the national prosecuting authorities, or the competent court dealing with the criminal case, in the relevant Member States. This will be determined in accordance with their national law and practice. If no agreement can be reached between them, they will all proceed with their cases and the decision that first becomes final will prevail, pursuant to Article 54 CISA and Article 50 CFR.

But since EU law does lay down information and consultation obligations for the Member States, as soon as parallel proceedings are detected, you should consider whether to invoke these provisions in an attempt to trigger consultation proceedings (Articles 5 to 13 CJ Framework Decision 2009/948/JHA together with Recital 5), or whether to let parallel proceedings continue and seek a final decision to be reached first in the most favourable Member State for your client.

It may be difficult to convince the relevant authorities to proceed in a Member State that is still investigating a case if another Member State has already issued a formal indictment, is already at the trial stage, or has progressed even further.

The financial capacity of your client to fund a cross-border dual or multiple defence team to defend him simultaneously in the multiple parallel proceedings may also have a bearing on whether the conflict issue should be brought to the attention of the authorities.

If the conflict arises during EAW proceedings and you conclude that the most suitable jurisdiction is the Executing State, then you may have no choice but to argue the issue in order to obtain a decision not to surrender. If the person is surrendered, it is highly likely that the Executing State will have waived jurisdiction (or made use of a similar mechanism) in favour of the Issuing State. The same applies if the conflict is between the Issuing State and a third EU Member State. If you have concluded that the latter would be the best place for your client to be prosecuted, together with the ISL and third Member State lawyer, they should trigger consultation proceedings in their Member States, which could ultimately lead to the EAW being withdrawn, should the Issuing State waive jurisdiction (or use a similar mechanism).

This will depend on national law, but you could in principle raise this issue in the Executing State with the Executing authority, or with the authority responsible for the substantive criminal case. The former might not be competent to decide on the conflict, but you can request that your application for consultation proceedings between the Member States be forwarded to the competent authority.

Simultaneously, or alternatively, the ISL (or the EU third state lawyer) may lodge a request with their competent national authorities for consultation proceedings to be launched.

You could also consider lodging a request to the relevant National Member at Eurojust. Eurojust is a judicial cooperation unit composed of national prosecutors, magistrates, or police officers of equivalent competence, detached from each Member State according to their own legal systems: see Council Decision 2002/187/JHA on setting up Eurojust, as amended by Council Decision 2003/659/JHA, and Council Decision 2009/426/JHA (16^th December 2008) on the strengthening of Eurojust[24]. It is “particularly well suited to provide assistance in resolving conflicts of jurisdiction” (Recital 14 CJ Framework Decision). In practice it has extensive experience on the matter.[25] Although consultation proceedings are primarily between the national authorities involved, they may take place with the assistance of Eurojust and where no agreement can be reached, the case should in principle be referred to Eurojust (Recitals 4, 10 and 14 and Article 12 CJ Framework Decision).

Eurojust, through its National Members or the College, can contact national competent authorities and draw their attention to a possible conflict and establish consultation proceedings under its auspices (Articles 82(1)(b) and 95(1)(c) Treaty on the Functioning of the EU and Articles 6(1)(a)(ii) and (c) and 7(1)(a)(ii) and (c) Eurojust Decision). The College may in certain situations issue a non-binding opinion on which jurisdiction should prosecute (Article 7(2) Eurojust Decision). Eurojust may also assist in cases of multiple EAWs (Article 16(1) and (2) EAW FD).

National Members of Eurojust must be informed by national authorities of cases where conflicts of jurisdiction have arisen or are likely to arise (Article 13(7)(a) Eurojust Decision).

Despite the absence of any provision establishing a right of the concerned person to trigger Eurojust’s intervention, the fact that national authorities must inform National Members of possible conflicts and that Eurojust may intervene, should be a sufficient legal basis for you to address a request to Eurojust, and for the relevant National Member to take action.

You can also attempt to trigger Eurojust’s action indirectly by requesting your competent national authority (eg. the Executing State authority in an EAW case) to forward the case to Eurojust. The ISL may also trigger Eurojust’s action directly or indirectly via her competent national authorities.

 

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[24] For more information, see Eurojust’s website.

[25] See a report on Eurojust’s casework on conflicts of jurisdiction drafted for the Eurojust Strategic Seminar on Prevention of Conflicts of Jurisdiciton.

Should consultation proceedings commence, as set out above, EU law does not explicitly give you a right to intervene. You should ascertain whether your national law gives this right, i.e. to be informed of the positions of both Member States, to make representations, be present in any meetings between the authorities, and to be informed of any decisions.

Since there is no guarantee that you will be able to intervene, your application for consultation proceedings to be launched should include detailed representations on the defence perspective as to the most appropriate jurisdiction.

Can you challenge a decision on jurisdiction? At the moment the decision on waiving or maintaining jurisdiction is a matter of national law and you will only be able to challenge it in accordance with procedures established under national law.

Fundamental Rights

If you have not had the chance to be heard or to intervene in consultation proceedings, you could try to challenge the decision of your national authority invoking Articles 47(1) and (2) CFR in conjunction with the CJ Framework Decision (the Charter only applies where there is relevant EU law in scope).

Article 47(2) provides that “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law”. Since the CJ Framework Decision was enacted to prevent the infringement of the ne bis in idem principle, already protected by Article 54 CISA and Article 50 CFR, which is a fundamental right of the person concerned (see Recital 3), it could be argued that the suspected or accused person should be entitled to be heard on this matter. The provisions in the CJ Framework Decision concerning consultation proceedings should therefore be interpreted in conformity with Article 47(2) CFR. A reason not to allow defence engagement could be the “protection of the investigation.” Usually when there are EAW proceedings involved, this justification should not be invoked as a reason to restrict the intervention of the defence in this process, since the person will already be aware that there are multiple investigations taking place. Where there might be compelling reasons not to involve the person due to the need for “protection of the investigation”, they must have the right to challenge the decision on the best placed jurisdiction to prosecute as soon as those grounds cease to exist and at the latest when a formal indictment against him/her has been brought.

Article 47(1) provides the right to an effective remedy. This could be invoked as a legal basis for challenging a decision on jurisdiction, in particular where the defence has not been able to exercise the right to intervene and convey its views, contrary to Article 47(2).

When requesting or challenging a decision on the choice of jurisdiction, you might also want to consider invoking procedural Charter rights (for example, if legal aid is manifestly insufficient or lacking in quality in a given Member State you could try to argue that choosing such a jurisdiction would constitute a violation of Article 47(3): “Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”).

These provisions could also be invoked in order to seek to intervene in any consultation procedures under the auspices of Eurojust. It will be necessary to overcome the rule of confidentiality (Article 25 Eurojust Decision), which the arguments suggested above could be utilised for, among others. If nothing more, it is possible to at least request access to personal data stored at Eurojust, notwithstanding certain limitations, and to appeal to Eurojust’s Joint Supervisory Board if no information is given (see Article 19ff Eurojust Decision). This route could be used to determine what decision has been made about jurisdiction.

If the conflict is not resolved, both (or more) Member States will proceed with their cases and the decision that first becomes final will prevail, pursuant to Article 54 CISA and Article 50 CFR.

Should this happen, your role, together with the ISL and if applicable the third EU Member State lawyer, is to seek a final decision to be reached first in the Member State that you consider to be the most appropriate for your client to be prosecuted.

If coercive measures are ordered in both (or more) parallel proceedings, you should consider invoking EU law and using a transnational rights approach to challenging them, for example:

Pre-trial detention

According to EU law the person may only be tried once for the same facts (Article 50 CFR and Article 54 CISA). It follows from this that the person may only serve one sentence. Any detention periods served for the same facts should be accounted for in that sentence (Article 50 CFR and Article 56 CISA).

Consequently, even where there is a risk of absconding, or interfering with witnesses that might usually justify remanding the person in pre-trial detention, you could argue that it would be disproportionate pursuant to Article 6 CFR/ 5 ECHR to impose subsequent pre-trial detention periods in two or more Member States that, notwithstanding respecting national laws, are disproportionate taking into account that only one sentence for the same facts may be imposed and enforced in only one of the Member States (for example, if the person is being prosecuted in different Member States for the same facts that carry a sentence of up to one year of imprisonment and has already spent six months in prison in one Member State and six months in another Member State, it would be disproportionate to remand her in pre-trial detention, irrespective of the risk of absconding, since she has already been detained for the time equivalent to the maximum sentence that may be imposed).

Freezing of Assets

If there are cumulative orders freezing the assets of the person in parallel proceedings, they may be challenged on grounds of proportionality (Articles 17, 50 and 52 CFR).