By Sonia, Shermane and Sandy
Within the EU, Eurojust achieved for the first time an effective attempt to provide for coordination to prevent conflicts of jurisdiction. Conflicts of jurisdiction occur when two or more member states possesses the right to investigate and prosecute the same alleged criminal offence. In 2003, Eurojust issued guidelines to help decide which jurisdiction is most competent to prosecute. In 2005, the Commission launched the Green Paper on conflicts of jurisdiction and the Principle of ne bis in idem in Criminal proceedings. But what about the principle of legality? Nor do the guidelines or the Green Paper tackle the derogation of this principle when an individual is subject to multiple jurisdictions, resulting from parallel cross-border prosecutions. This post shows the limited role of the legality principle is in parallel cross-border investigations, what solutions have been already proposed and how could Eurojust overcome the current shortcomings.
What is the role of the legality principle in parallel cross-border investigations?
Parallel investigations, understood as when two or more states claim criminal jurisdiction to investigate, prosecute and adjudicate suspicious criminal conduct. The Commission included the principle of legality as one of the main principles expressing the core meaning of the rule of law in its communication on a new EU framework to strengthen the rule of law. The principle of legality has also been described as an “umbrella” principle, as it covers multiple other principles. Although the focus of this post is the aspect of foreseeability of laws (legal certainty). This is understood as a requirement of predictability and accessibility of the law, so that a subject of law can reasonably foresee the consequences of its actions. Meaning that an individual must be able to predict which law he/she are subject to and what are its consequences. “Law” requires sufficiently precise formulation to enable the person concerned to foresee the consequences that a given action may entail. In case a crime affects different jurisdictions and triggers different national investigations and prosecutions, as a general rule, each state possesses jurisdiction. Jurisdiction may arise from different origins. It may be territorial (ratione loci), where the state exercises jurisdiction over a certain territory. A state´s jurisdiction may also arise from a personal scope (ratione personae), whereas the right to prosecute is related to a person. Either the offender (active jurisdiction) or the victim (passive jurisdiction) is a national of the state. Resultantly, the individual faces parallel prosecutions, each following different substantive and procedural rules. Consequently, the violation of the ne bis in idem principle is at risk. Which refers to the notion that a person shall not be punished twice for the same conduct. Furthermore, arbitrariness may appear, ultimately resulting in forum shopping (see graph). Forum shopping in this context is understood as when Member States choose a certain jurisdiction for the case to be heard because it is more likely to provide a favorable outcome. For example, where the conduct is more severely punished.
Eurojust to the rescue? The Competence of Eurojust to enforce the principle of legality in parallel investigations.
Art. 4(1) c and 4(2)b of Regulation (EU) 2018/1727 state that first, Eurojust is competent to assist the competent authorities of the Member States (MS) in ensuring the best possible coordination of investigations and prosecutions. Secondly, Eurojust may issue a written opinion to indicate the MS most competent to prosecute. Hence, Eurojust is more suited to tackle this issue both in the early stages of the investigation through assistance and cooperation and ultimately recommending competent jurisdiction.
The European Law Institute published a Draft Legislative Proposals prevent and resolve conflicts of jurisdiction aiming to avoid uncertainty and lack of foreseeability. The reports include substantive legality as a relevant aspect of Article 47 CFR, which provides inter alia that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. We consider that the last part “concerning the tribunal established by law” renders problematic in parallel investigations and prosecutions, because the jurisdiction in which a suspect is to be prosecuted is unclear and may remain undecided for an unacceptably period of time. Moreover, Article 49 CFR, enshrining the principles of legality and proportionality. Some law academics, as Luchtman already predicted in many articles this shortcoming. He relates the substantive legality principle, foreseeability and choice of forum. He argues that insofar as the specific jurisdiction determines the applicability of different national substantive provisions, a new framework to provide for that choice would support the foreseeability of the law for the individual.
The European Law Institute distinguishes three alternative approaches that would provide the principle of legality the granted role in the CFR in parallel cross-border investigations.
- The so-called horizontal mechanism, in which the conflicts of jurisdiction and parallel investigations are solved via mutual trust between MS.
- The vertical mechanism is characterized by a binding supranational decision (issued by Eurojust) in cases where coordination between the national criminal justice authorities has failed.
- Mechanisms for the allocation of criminal jurisdiction in the AFSJ, defend the establishment of uniform European rules on the allocation of the exercise of criminal jurisdiction in the AFSJ.
From the three choices, we consider the second one the most suitable. On one hand, the horizontal mechanism is what MS are doing right now, which has proven non efficient. This is because there is not a uniform procedure that would allow the individual to foresee the consequences of their conduct or which law are they subject to. On the other hand, a complete regulatory mechanism that would force MS to accept which jurisdiction is better suited would render too complex to enforce. This complexity derives from the fact that there are too many factors to assess to decide which jurisdiction is more suitable. As for example, the nationality and current location of the suspect, the place where most evidence is located, the interest and protection of victims and witnesses etc. This factors, which a lot depend on the specific circumstances of the case at hand makes it difficult to merely stablish that one is more important than the other and therefore each case needs a specific assessment.
So, what can be done now?
At current, the legal certainty problems that derive from parallel investigations should be acknowledged, taking as an example Eurojust. Eurojust tackles in its reports the importance of detecting parallel investigations at the earliest possible stage.
There is the need to acknowledge greater the legal certainty problems that derive from parallel investigations and Eurojust should be taken as an example. At current, Eurojust considers that parallel proceedings can be considered beneficial in combating crime if they are performed in a coordinated manner. They assess questions regarding parallel investigations in their plenary meetings and tackle the issue in the yearly coordination meetings. Indeed, this is a positive attempt for these issues to be addressed in coordination meetings and strategic seminars solely for the purpose of tackling parallel investigations and their consequences for individuals as it increases understanding regarding the issues related to legality that may arise in parallel investigations and prosecutions. The gentle mandate of Eurojust to support cooperation and coordination between Member States is without doubt, enhanced in such a way even without the use of punitive sanctions to achieve compliance. To conclude, policy documents as guidelines on coordinated and safeguarded parallel investigations would be a great contribution from Eurojust.