Complementarity: Contest or Collaboration? - FICHL

Complementarity and the Exercise of Universal Jurisdiction for
Core International Crimes
there is a possibility of a prosecution being launched in two or more
different jurisdictions. 67 The Guidelines have been designed to provide
reminders to EU Member States and to define the issues that are
important when such decisions are made; with emphasis being laid that
the priority and weighting to be given to each factor in the below matrix
will be different in each case, bearing in mind the facts and merits of each
individual case.
Factors to be taken into consideration according to the Eurojust
Guidelines include: the identification of each jurisdiction where a
prosecution is not only possible but also where there is a realistic prospect
of successfully securing a conviction; the preliminary presumption that, if
possible, a prosecution should take place in the jurisdiction where the
majority of the criminality occurred or where the majority of the loss was
sustained; the possibility of a prosecution in the jurisdiction where the
accused in located and whether extradition proceedings or transfer of
proceedings are possible; the capacity of the competent authorities in one
jurisdiction to extradite or surrender a defendant from another jurisdiction
to face prosecution in their jurisdiction; in complex cross border cases
where the criminality occurred in several jurisdictions, the possibility,
practicability and efficiency for dealing with all the prosecutions in one
jurisdiction; 68 the willingness of a witness to travel and give evidence in
another jurisdiction, or the possibility of receiving their evidence in
written form or by other means such remotely (by telephone or videolink);
the possibility of one jurisdiction being able to offer a witness
protection programme not available in another; the length of time which
proceedings will take to be concluded in a jurisdiction, in view of
avoiding delays (not a lead factor and to be considered where other
factors are balanced); the interests of victims and whether they would be
prejudiced if any prosecution were to take place in one jurisdiction rather
than another, including the possibility of claiming compensation; given
that evidence is collected in different ways and often in very different
67
Eurojust Guidelines, Annual Report 2003, Making the Decision - "Which Jurisdiction
Should Prosecute?"; available at
http://www.eurojust.europa.eu/press_annual_report_2003.htm
68
As the Eurojust guidelines note: “In such cases prosecutors should take into account
the effect that prosecuting some defendants in one jurisdiction will have on any
prosecution in a second or third jurisdiction. Every effort should be made to guard
against one prosecution undermining another”; ibid.
FICHL Publication Series No. 7 (2010) – page 102