European Criminal Justice - EJTN

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EJTN training guideline in European Criminal Justice - Update 2011The recommended training method would be specialised seminars andworkshopsB) Complementary e-learning: recommendedC) Priority:Training on these instruments should have priorityTraining on this topic has been selected to form part of a common nationaltraining curriculum in European criminal justice by the participating trainers ofthe joint Workshop 'A joint frame for European criminal justice training in theEU'.D) Format:Training should take place on a national, trans-national and EU-wide level.VI. Ne bis in idem, transfer of criminal proceedings andconflicts of jurisdiction1. IntroductionThe Council of Europe Convention on the Transfer of Proceedings in criminalmatters was adopted in 1972. Yet, only thirteen Member States have ratified it.As a result, a number of other Member States rely only, for the purposes ofenabling other Member States to bring proceedings, on the mechanism of the1959 Council of Europe Convention on Mutual Legal Assistance in CriminalMatters, in connection with the Convention on Mutual Legal Assistance inCriminal Matters between the Member States of the European Union from 2000.However, as this mechanism is far from providing the same effects as the oneresulting from the Council of Europe’s Convention indicated above, the mostfrequently tool used to that end consists in the establishment of bilateral ad-hocagreements, under the reciprocity rule, when the national laws involved providethat possibility.Between the Member States of the European Communities an agreement on thetransfer of proceedings in criminal matters was also signed in 1990, which hasnot, however, entered into force due to lack of ratifications. Accordingly, nocommon legal framework on the procedure of transfer of proceedings with e.g.,criteria for requesting transfer, a procedure following a request, reasons forrefusing a request and effects of a transfer, exists. In line with the aim ofcreating a common European area of freedom, security and justice, severalMember States deemed it necessary to take action to eliminate the deficits ofthe absence of such framework. Their proposal for a Framework Decision aims toachieve the better determination of the place of the criminal proceedings andthe increase transparency and greater objectivity in the way in which the placefor the trial is chosen.The principle of ne bis in idem is particular to criminal law; recognized at bothnational and international levels, initiating proceedings or reopening ajudgment against the same person a second time is barred for the same offenceor by courts of the same state. The principle of ‘ne bis in idem’ is acknowledged39
EJTN training guideline in European Criminal Justice - Update 2011in all member states of the EU. However, the international texts establishing thisonly guarantee this protection within national borders. The principle of ne bis inidem has therefore been included in several international conventions, the mostimportant one being Article 54 of the 1995 Convention on implementing theSchengen Agreement. Article 54 has been the object of several judgments of theEuropean Court of Justice. The principle is further established in Article 50 of theCharter of Fundamental rights. At EU level, in 2005, the Commission launched aGreen Paper to start a process of reflection on conflicts of jurisdiction betweenthe courts of the member states in criminal matters in the light of the ne bis inidem principle. To solve conflicts of jurisdiction between national courts, theCommission outlined the possibilities for the creation of a mechanism forallocating cases to an appropriate jurisdiction. In February 2009, the CzechRepublic, the Republic of Poland, the Republic of Slovenia, the Slovak Republic,and the Kingdom of Sweden introduced an initiative for a Framework Decisionon the prevention and settlement of conflicts of jurisdiction in criminalproceedings. The Framework Decision aims to prevent parallel proceedingswhere two or more States have jurisdiction for conducting criminal proceedingsfor the same facts through means of an early exchange of information. In thecases, where the conflict of jurisdiction has already arisen, it puts forwardguidelines for settlement of the respective conflict. The Framework Decision wasadopted in December 2009. Finally, Eurojust’s legal framework provides for arole of Eurojust in the settling of conflicts of jurisdiction.Training contentNe bis in idem and conflicts of jurisdiction- Training should focus on the case law and jurisdiction of the EuropeanCourt of Justice with regard to the principle of ne bis in idem.- Scope, content and application of the proposed Framework Decision ontransfer of proceedings in criminal mattersTransfer of criminal proceedings1. International competence of national Courts2. International delegation of competence2.1. Conditions2.2. Procedure2.3. Effects3. Scope, content and application of the Framework Decision on conflicts ofexercise jurisdiction in criminal proceedings2. Instruments and case lawa. Council of EuropeEuropean Convention on the transfer of proceedings in criminal matters(Strasbourg, 15.V.1972)b. EU40
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European Criminal Justice - EJTN

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