Criminal Jurisdiction—Concurrent Jurisdiction, Sovereignty, and the Urgent Requirement for Coordination

Chapter 4 provides an incisive introduction to criminal jurisdiction and the internet, setting the scene for the chapters on jurisdiction of the criminal courts (Chapter 5) and investigative jurisdiction (Chapter 6). It explains the concurrency of criminal jurisdiction in international law and analyses the problems arising. In particular, there are two main conflicts of jurisdiction: first, the multiple, overlapping claims of jurisdiction between several states and the risk of multiple prosecutions for the same crime (or no prosecutions, as no state has sufficient evidence or motivation; second, jurisdictional overreach where conduct is lawful in one country, but a criminal offence in another country who wishes to prosecute, potentially causing jurisdictional overreach and spill-over effects. The chapter begins by setting out the grounds of jurisdiction under international law. An examination of the cross-border implications of cybercrime follows, distinguishing three discrete aspects of the cross-border nature of cybercrime and analysing the nature of jurisdictional conflicts under the lens of territoriality and connecting factors. It analyses how a better coordination of jurisdictional claims might be achieved under comity and reasonableness principles, and coordination under EU law, such as the Eurojust Guidelines and the EU Framework Decision. Finally, it critically analyses the ambit of double jeopardy and the ne bis in idem principles and their limited application. Conflicts of criminal jurisdiction, and the potential of multiple prosecutions of defendants for the same offence, call for greater international cooperation between states and coordination rules between different legal orders. However, the development of coordination rules in respect of national criminal jurisdiction is in its infancy.

INTERNET LAW IN INTERNATIONAL PRIVATE LAW

The article examines the issues of Internet legal relations and conflicts of jurisdiction between the states when resolving disputes. The interrelation of Internet legislation and private international law is investigated. The application of Russian legislation in Russian Federation in the regulation of human rights activities is analyzed. Judicial practice of the countries of the Anglo-Saxon legal system is considered.

Jurisdiction and Transnational Ne Bis in Idem in Prosecution of Transnational Crimes

This chapter explores the range of jurisdictional principles that have been developed by various states to address the applicability of ne bis in idem to the prosecution of transnational crimes. It first considers two approaches under international law dealing with criminal jurisdiction before discussing state practice on jurisdictional principles, focusing on territorial jurisdiction, the protective principle, the flag principle, and the active nationality principle. The aut dedere, aut judicare principle, passive nationality principle, the domicile principle, the principle of universal jurisdiction, and the principle of complementary jurisdiction/secondary jurisdiction are also examined, along with the justifications for states to vest extraterritorial jurisdiction. The chapter concludes with an analysis of solution mechanisms for the prevention of conflicts of jurisdiction and of limitations to jurisdiction.

Jurisdiktionskonflikte im Rahmen transnationaler Kriminalität

The thesis examines states’ prosecutorial powers in regard to cross-border criminal acts of natural persons and companies, as well as the problems of conflicts of jurisdiction resulting from the parallel applicability of the criminal law of multiple states. It focuses on the individual legal position of the accused and norm addressee, who, in a globalised economy and society, needs to be able to distinguish right from wrong. The ne bis in idem and other mechanisms fail in an “Area of Freedom, Security and Justice” where certain normative standards require overcoming the lack of foreseeability of the applicable substantive and procedural criminal law and to eliminate leeway for arbitrary considerations of the executive (forum shopping). The work meets this demand with a transparent legal framework for the coordination of prosecutorial powers within the EU that takes a liberal approach and is based on fundamental principles of the rule of law. It deals with basic issues of the transnational scope of corporate criminal law, which should be considered in the current reform discourse. The author is a lawyer specialising in white-collar criminal law in Frankfurt am Main.

Conflicts of jurisdiction in criminal law Lessons from European Civil Procedure

One of the main purposes of private international law is the resolution of conflicts of jurisdiction in civil matters. In the European Union (EU), this goal is pursued by an articulate body of regulations, forming part of what is usually labelled as ‘European procedural law’ or ‘European civil procedure’. In criminal law, by contrast, no such system exists: although Eurojust aims at resolving conflicts of jurisdiction by facilitating the identification of the jurisdiction that should prosecute cross-​border crimes, no hard-​law instrument regulates this matter in a binding fashion.

The legal basis for preventing and resolving conflicts of criminal jurisdiction in the TFEU

Since the European Union (EU) has received powers to adopt legally binding acts in the area of judicial cooperation in criminal matters, the Treaties expressly referred to conflicts of jurisdiction as one of the issues to be tackled. Under the Amsterdam Treaty, the Union could adopt decisions and framework decisions with the aim of ‘preventing conflicts of jurisdiction between Member States’ (ex-​Article 31(d) of the Treaty on European Union (TEU)). The Treaty of Nice (26 February 2001) added the coordination of prosecutions through Eurojust.

Draft Legislative Proposals for the Prevention and Resolution of Conflicts of Jurisdiction in Criminal Matters in the European Union

Instrument of the European Law Institute The European Law Institute (ELI) is an independent non-​profit organisation established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development. Building on the wealth of diverse legal traditions,...