Eurojust to the rescue! The rising principle of legality in parallel cross-border investigations and prosecutions

By Sonia, Shermane and Sandy

Positive conflicts of jurisdiction occur when two or more member states (MS) posses the right to investigate and prosecute the same alleged criminal offence. Within the context of the European Union, Eurojust aims to provide coordination among MSs when a conflict of jurisdiction emerges. In 2003 (updated in 2016), Eurojust issued guidelines to aid decision-making in the MS with the most competent jurisdiction. In 2005, the Commission launched the Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings. The Framework Decision 2009/948/JHA on prevention and settlement of disputes of exercise of jurisdiction in criminal proceedings appears to be the one legal instrument that covers this area, but what about the principle of legality? Neither the guidelines nor the Green Paper tackles 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 in parallel cross-border investigations and elaborates on the solutions that have been proposed so far. Finally, it looks at the most feasible way Eurojust could overcome the current shortcomings.

What is the role of the legality principle in parallel cross-border investigations?

Parallel proceedings are where two or more states claim criminal jurisdiction of the same suspicious criminal conduct. Parallel proceedings can involve parallel investigations or parallel prosecutions, or both. In its communication on a new EU framework to strengthen the rule of law, the Commission included the principle of legality as one of the main principles expressing the core meaning of the rule of law. Ever since, the concept has been further developed. The relevance of the principle is reiterated in the Commissions 2019 communication as an essential element of the rule of law. The principle of legality has also been described as an “umbrella” principle, as it covers multiple other principles. However, this post focuses on the foreseeability of laws (legal certainty), which 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. This is ascertained by sufficiently precise formulation of laws.

In case a crime affects different states, parallel proceedings may emerge, as, in principle, each state possesses jurisdiction (see infographic). Jurisdiction may arise from jurisdiction ratione loci or jurisdiction ratione personae. The latter includes whether active personality or passive personality jurisdiction. The individual may be the subject of parallel proceedings, each following different substantive and procedural rules. In addition, it could also be possible that no Member States want to investigate or prosecute, which would entail a negative conflict of jurisdiction

For instance, in a case of an assault taking place in Belgium. Where the perpetrator is a French national residing in Belgium, the victim is a Dutch national having a permanent habitual residence in Germany. Consequently, several states may possess jurisdiction. Conversely, Belgium may start proceedings based on jurisdiction ratione loci. On the other hand, the Netherlands may start parallel proceedings based on jurisdiction ratione personae, more precisely by the passive personality principle. Finally, France possesses jurisdiction ratione personae, specifically passive personality jurisdiction.

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 multiple times or be subject to various proceedings for the same conduct. Furthermore, arbitrariness may appear, ultimately resulting in forum shopping. Forum shopping in this context is understood as when the Member States choose a particular jurisdiction for the case to be heard because it is more likely to provide a favourable 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 states that Eurojust is competent to assist the competent authorities of the Member States (MS) in ensuring the best possible coordination of investigations and prosecutions. Moreover, Eurojust may issue a written opinion to indicate that the MS is 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. For instance, there is a growing number of parallel proceedings detected by Eurojust via Article 13(7)(a), from 10 notifications received by Eurojust to 49 in 2017. This increase shows that dialogue and mutual trust are the main elements that Member States value to find a standard solution. Thanks to Eurojust, relevant details can be brought to the attention of the competent national authorities, which may decide to open an investigation. In complex cases, Eurojust proposes the creation of a JIT, which facilitates and coordinates further studies.

In 2017, the European Law Institute published a Draft Legislative Proposals aiming to prevent parallel proceedings and resolve conflicts of jurisdiction, thereby ensuring the protection of the above-mentioned ne bis in idem principle. The focus was drawn on guaranteeing legal certainty and foreseeability to achieve this. The reports include substantive legality as a relevant aspect of Article 47 CFR, which provides, among other things, 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.  Moreover, it enshrines the principles of legality and proportionality. Some legal scholars, such 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.

Alternative solutions

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.

1. The so-called horizontal mechanism, in which the conflicts of jurisdiction and parallel investigations are solved via consultation between MS, shall eventuate in an agreement.
2. The vertical mechanism is characterised by a binding supranational decision (issued by Eurojust) in cases where coordination between the national criminal justice authorities has failed.
3. The model for the allocation of criminal jurisdiction in the AFSJ aims to prevent the emergence of conflict of jurisdictions by establishing 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 the one hand, the horizontal mechanism, the current practice between MS, has proven non-efficient. This is because there is no uniform procedure that would allow the individual to foresee the consequences of their conduct or which law, they are subject to.  On the other hand, a complete regulatory mechanism that would force MS to accept which jurisdiction is better suited would render it too complex to enforce. This complexity derives from the fact that there are too many factors to assess, which have to be considered in all three models to decide which jurisdiction is more suitable. 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. Depending on the specific circumstances of the case at hand, these factors make it challenging to establish that one is more important than the other; therefore, each case needs a particular assessment.

So, what can be done now?

Currently, the legal certainty problems that derive from parallel investigations should be acknowledged, taking Eurojust as an example. Eurojust tackles in its reports the importance of detecting parallel investigations at the earliest possible stage.

There is the need to acknowledge more significant the legal certainty problems that derive from parallel investigations, and Eurojust should be an example. Currently, Eurojust considers that parallel proceedings can be 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 to tackle 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 the 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 significantly benefit Eurojust.