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.

Fundamental Rights Protection between Strasbourg and Luxembourg

Since long before the entry into force of the Charter of Fundamental Rights of the European Union (CFREU), the two highest courts in Europe, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have sought to develop their respective jurisprudence in such a way as to ensure a strong protection of individual rights, whilst avoiding clashes between the decisions taken in Luxembourg and Strasbourg. An important statement in this regard is provided by the Bosphorus judgment, in which the Grand Chamber of the ECtHR recognised the existence of a presumption of equivalent protection of fundamental rights under EU law. The presumption is rebuttable, but expresses the trustful attitude (and a certain degree of deference) of Strasbourg towards the ability of EU law (and of the CJEU) to protect Convention rights.

Forum Choice in the Area of Freedom, Security, and Justice

The European Union (EU), as unprecedented institutional and polity project, is responsible for the fulfilment of a set of policy goals that go beyond the mere sum of the interests of its Member States. The establishment of an ‘area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to . . . the prevention and combating of crime’ is probably one of the most demanding goals of the integration process, whose fulfilment requires commitment to coherent action on several levels: vertically, between the EU and the Member States, through incorporating the implementation of the Treaty objectives in the development of their respective criminal policies, and horizontally, between the Member States themselves, by developing mutual trust.

Choice of forum and cybercrime

In the words of the chair of the drafting committee behind the Council of Europe Convention on Cybercrime (Budapest Convention; CCC), cybercrime ‘is a term of ‘hype’ and not a legal definition’. For Clough, there are ‘almost as many terms to describe cybercrime as there are cybercrimes’. The ‘cyber’ element is, of course, a first crucial characteristic; as Walden recalls, much of the illicit activity which qualifies as cybercrime is a (novel) subset of computer crime. Infect a computer with a virus through a floppy disk or CD, for example, and this would lack the cyber element. Some attempts at defining the phenomenon have hitched developments in cybercrime to the development of the internet itself—​as is the case for ‘e-​crime 1.0’ and ‘e-​crime 2.0’. Alternatively, a focus on the victim or target is used: crimes against computers; crimes against property; illicit content; and (comparatively new—​take cyber-​harassment, for instance) offences against the person with a cyber element.

Choice of forum and case allocation in the EPPO Regulation

The subject matter of ‘conflicts of criminal jurisdiction’ has already required attention of the EU legislator in the negotiations on the regulation on the establishment of the European Public Prosecutor’s Office (EPPO). The purpose of this contribution is to present issues that have arisen in this respect and the solutions that have been found in the course of the negotiations on the EPPO Regulation. As will be shown further below, the outcome of the negotiations on the EPPO Regulation may to a limited extent serve as inspiration also in view of possible models to be developed for a resolution of conflicts of criminal jurisdiction between Member States.

Choice of forum, european citizenship, and fundamental rights

The Court of Justice has stated that ‘the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals’. The wording highlights the differences between the European legal order (the European Union (EU) and its Member States) and the international legal order. Whereas international law is regarded as a matter between states, the Court’s characterisation of the European Union expressly makes room for individuals, EU citizens to be more precise. In line with this, Article 3(2) of the Treaty on European Union (TEU) states that the EU shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration, and the prevention and combating of crime.

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.

What role for crime victims in the forum choice?

The consequences of globalisation are perceived by victims of crime, too. It is not difficult to imagine a situation in which a person is harmed by criminal conduct that, in principle, could be legitimately investigated and adjudicated in several jurisdictions.

Praface to Part I

Setting the Scene At the heart of the problems that this book addresses lies the question of overlapping jurisdictions. Overlapping criminal jurisdictions are an important, but still neglected aspect of law enforcement reality. There is no monocausal explanation for this social phenomenon. It is not...

Report on The Field Research at Eurojust, February 2015

Eurojust contributed to the three-​year project entitled ‘Prevention and Settlement of Conflicts of Exercise of Jurisdiction in Criminal Law’, led by the University of Luxembourg. In this context, Dr Angelo Marletta also interviewed representatives from the Eurojust National Desks and the Secretary to the European Judicial Network, all of whom volunteered. These interviews took place in February 2015. The report is a summary of the field research, which is based on the interview transcripts. The transcripts should be considered raw material, neither verified nor edited, and not reflecting a Eurojust position. Also to be noted is that the Eurojust document, ‘Guidelines for deciding “Which jurisdiction should prosecute?” ’, which was revised by Eurojust in 2016, after the interviews took place, is not reflected in the report.