The case for transferring territoriae jurisdiction in the European Union

Criminal Law Forum

Volumn 12, Issue 2, 2001, Pages 247-265

  Seguin, John ^a  

^a NONE   (United States)

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EID: 52549121984     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1013073209505     Document Type: Article

References (74)

1. Ekkehart Muller-Rappard, The European system, in INTERNATIONAL CRIMINAL PROCEDURE 95, 96 (M. Cherif Bassiouni, ed., 1986) (emphasis added).
2. European Convention on Mutual Assistance in Criminal Matters of 1959, [1959] E.T.S. 30.
3. The 1959 Mutual Assistance Convention was developed by the Council of Europe. The Council, founded in 1949, is an inter-governmental body comprised of forty-three countries: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Eatvia, Eiechtenstein, Eithuania, Euxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, and the United Kingdom. In contrast, the European Union, a supra-national body, consists of fifteen members: Austria, Belgium, Denmark, the Federal Republic of Germany, Finland, France, Greece, Ireland, Italy, Euxembourg, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom.
4. See Muller-Rappard, supra note 1, at 95.
5. This paper will focus only on the prosecution of alleged offenders and will not address the investigation of crimes. Nor will this paper cover crimes that may be prosecuted under universal jurisdiction.
6. The term "transnational crime" in this paper will refer only to situations in which the defendant is a national of a Member State of the European Union and commits a crime in the territory of another Member State. The reason for this narrow usage stems from the uncertainty in customary international law whether a criminal proceeding may be transferred without the consent of the defendant's state of nationality. For a rigorous discussion of this issue see Madeline Morris, High Crimes and Misconceptions: The ICC and Non-party States (unpublished manuscript, on file with the author).
7. For purposes of this paper, "transfer of proceedings" and "transfer of jurisdiction" are used interchangeably.
8. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 300 (4th ed., 1990). Other types of jurisdiction recognized by some states include: nationality, the passive personality principle, the protective principle, and universal jurisdiction.
9. See ibid., pp. 303-305.
10. See Explanatory Report on the European Convention on the Transfer of Proceedings in Criminal Matters, in 2 EUROPEAN INTER-STATE Co-OPERATION IN CRIMINAL MATTERS 848 (1991) [hereinafter Explanatory Report].
11. See Brownlie, supra note 8, pp. 300-301.
12. Ibid., p. 301.
13. See Explanatory Report, supra note 9, at 848.
14. European Convention on Extradition, Dec. 13, 1957, E.T.S. 24.
15. Council Act of Sept. 27, 1996 Drawing up the Convention Relating to Extradition Between the Member States of the European Union, Official Journal C 313, 23/10/1996.
16. Treaty Between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands Concerning Extradition and Mutual Assistance in Criminal Matters, June 27, 1962, 616 U.N.T.S. 79.
17. The PJCC subsumed the former Justice and Home Affairs branch of the European Union created by the Maastricht Treaty.
18. Treaty on European Union, Oct. 11, 1997, art. 29, OJ C 340 [hereinafter TEU].
19. See Official Journal of the European Communities, E 287/3, 96/636/JHA, Nov. 8, 1996.
20. See Official Journal of the European Communities, E 7/5, 97/12/JHA, Jan. 10, 1997.
21. See e.g., European Convention on Mutual Assistance in Criminal Matters, [1959] E.T.S. 30; European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders, [1964] E.T.S. 51; European Convention on the Punishment of Road Traffic Offences, [1964] E.T.S. 52; European Convention on the International Validity of Criminal Judgments, [1970] E.T.S. 70; European Convention on the Repatriation of Minors, [1970] E.T.S. 71; European Convention on the Transfer of Proceedings in Criminal Matters, [1972] E.T.S. 73; European Convention on the Non-applicability of Statutory Eimitations to Crimes against Humanity and War Crimes, [1974] E.T.S. 82; Additional Protocol to the European Convention on Extradition, [1975] E.T.S. 86; European Convention on the International Effects of Deprivation of the Right to Drive a Motor Vehicle, [1976] E.T.S. 88; European Convention on the Suppression of Terrorism, [1977] E.T.S. 90; Additional Protocol to the European Convention on Information on Foreign Eaw, [1978] E.T.S. 97; Second Additional Protocol to the European Convention on Extradition, [1978] E.T.S. 98; Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, [1978] E.T.S. 99; European Convention on the Control of the Acquisition and Possession of Firearms by Individuals, [1978] E.T.S. 101; European Convention on the Transfer of Sentenced Persons, [1983] E.T.S. 112; European Convention on the Compensation of Victims of Violent Crimes, [1983] E.T.S. 116.
22. See Muller-Rappard, supra note 1, p. 97.
23. Convention on Transfer of Proceedings in Criminal Matters, Brussels, Nov. 6, 1990.
24. Bert Swart, The European Union and the Schengen Agreement, in 2 INTERNATIONAL CRIMINAL EAW 183-184 (M. Cherif Bassiouni, ed., 2nd ed., 1999).
25. Draft Convention based on article K.3 of the Treaty on European Union Concerning Mutual Assistance in Criminal Matters Between the Member States of the European Union, July 18 1997, Council of the European Union, 9897/97 JUSTPEN 65, art. 1(2).
26. See European Convention on the Transfer of Proceedings in Criminal Matters [1972] E.T.S.73 [hereinafter Transfer Convention]. As of Feb. 9, 2000, twelve states had ratified the Transfer Convention: Austria, Czech Republic, Denmark, Estonia, Eatvia, Eithuania, Netherlands, Norway, Slovakia, Spain, Sweden, Turkey, and Ukraine. See Council of Europe: Chart of Signatures and Ratifications ETS No.73 (visited Feb. 23, 2000) 〈http://www.coe.fr/tablconv/73.html〉.
27. See Explanatory Report, supra note 9, at 846.
28. Transfer Convention, supra note 25, art. 6(1).
29. Article 8 of the Transfer Convention states: A Contracting State may request another Contracting State to take proceedings on any one or more of the following cases: (a) if the suspected person is ordinarily resident in the requested State; (b) if the suspected person is a national of the requested State or if that State is his State of origin; (c) if the suspected person is undergoing or is to undergo a sentence involving deprivation of liberty in the requested State; (d) if proceedings for the same or other offences are being taken against the suspected person in the requested State; (e) if it considers that transfer of the proceedings is warranted in the interests of arriving at the truth and in particular that the most important items of evidence are located in the requested State; (f) if it considers that the enforcement in the requested State of a sentence if one were passed is likely to improve the prospects for the social rehabilitation of the person sentenced; (g) if it considers that the presence of the suspected person cannot be ensured at the hearing of proceedings in the requesting State and that his presence in person at the hearing of proceedings in the requested State can be ensured; (h) if it considers that it could not itself enforce a sentence if one were passed, even by having recourse to extradition, and that the requested State could do so.
30. Heike Jung, Criminal Justice: A European Perspective, [1993] CRIM. L. REV. 237.
31. See Christopher Hording and Bert Swart, Intergovernmental Co-Operation in the Field of Criminal Law 87 in CRIMINAL JUSTICE IN EUROPE: A COMPARATIVE STUDY (1995).
32. Ibid. The reluctance to cooperate in criminal law has diverged from other areas of law where cooperation has been more prevalent. "In contrast, for instance, to a field such as commercial law, where there have been cogent arguments and strong economic pressure for co-operation and harmonization at the international level, the internationalisation of criminal law at a general level has remained to a large extent a speculative and Utopian programme"
33. (Ibid.).
34. Ibid., p. 94.
35. Ibid.
36. Ibid.
37. Ibid., p. 95.
38. For example, France, Germany, and the United Kingdom have not signed the Transfer Convention.
39. See Harding and Swart, supra note 30, at 95.
40. See Paolo Bernasconi, Transborder offenses: Terrorism, Narcotics Trafficking, White-Collar Offenses 93 in WHAT KIND OF CRIMINAL POLICY FOR EUROPE? (Mireille Delmas-Marty, ed., 1996). The legal systems of states such as Switzerland, for example, are not compatible with the Transfer Convention because those systems do not recognize the jurisdiction of countries over formal crimes other than where the crime took place. Thus the transfer of proceedings to a contracting state other than where the crime took place would be acceptable under the Transfer Convention, but not under the Swiss Penal Code.
41. See ibid., pp. 96-97.
42. For example, see the Falcon Trust case. "The illegal scheme effectuated by the management of the Falcon Trust Queen's Financial Group, which had numerous known and hidden subsidiaries operating in approximately twenty countries, caused the loss of about S500 million by 5, 000 investors scattered throughout the four corners of the earth" (Ibid., p. 99).
43. The concept of ne bis in idem means that "a person who has been the subject of a final judgement in a criminal case cannot be prosecuted again on the basis of the same fact". Explanatory Report, supra note 9, at 889.
44. The EPC has drafted a Convention on Double Jeopardy, Brussels, Nov. 13, 1987, but it has not yet entered into force nor been published in the Official Journal of the European Communities. See Bert Swart, supra note 23, pp. 183-184.
45. Over the years, extradition procedures have improved allowing for application in a greater range of situations. See generally G. Vermeulen and T. Vander Beken, New Convention on Extradition, 15 DICK. J. INT'L L. 265 (discussing recent developments in extradition among EU Member States).
46. See Ethan Nadelmann, The Role of the United States in the International Enforcement of Criminal Law, 31 HARV. INT'L L.J. 37, 67 (1990).
47. Harding and Swart, supra note 30, at 95. With respect to the hypothetical crime committed by the British national in the Netherlands, the European Convention on Extradition would allow the United Kingdom to refuse extradition of its national and, in turn, permit the Netherlands to request prosecution of the defendant in the United Kingdom.
48. See European Convention on Extradition, supra note 13, art. 6 (ratified by every Member State of the European Union). While the Netherlands would prefer this solution, the United Kingdom's insistence on prosecution by the state of territoriality may preclude implementation of the solution.
49. After the indictment of two Libyan intelligence officers by a federal grand jury in Washington, D.C., the United States informally requested that Libya extradite the two men.
50. When Libya refused to extradite the men, the United Nations Security Council adopted a resolution demanding that Libya extradite its two intelligence officers. For a brief analysis of the Lockerbie case, see Michael Plachta, Aut Dedere Aut Judicare: An Overview of Modes of Implementation and Approaches, 6 MAASTRICHT J. LUROPEAN & COMP. L. 331 (1999).
51. Transfer Convention, supra note 25, arts. 30 and 31.
52. The entire text of article 8 of the Transfer Convention is reproduced in supra note 25.
53. See Transfer Convention, supra note 25, art. 8(1)(g).
54. Ibid., art. 8(1)(e).
55. Ibid., art. 8(1)(d).
56. Ibid., art. 8(1)(b).
57. Ibid., art. 8(1)(f).
58. Explanatory Report, supra note 9, p. 856.
59. According to article 35(3) of the TEU, a Member States may specify that either: (a) any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity or interpretation of an act … if that court or tribunal considers that a decision on the question is necessary to enable it to give judgement, or (b) any court or tribunal of that State may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgement.
60. See Transfer Convention, supra note 25, art. 8.
61. Article 44 of the Transfer Convention does provide that the European Committee on Crime Problems of the Council of Europe "shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of [the convention]". It appears, however, that the Committee may not make binding decisions in disputes arising among contracting states.
62. See e.g., INTERNATIONAL CRIMINAL PROCEDURE (M. Cherif Bassiouni, ed., 1986);
63. Julian Schutte, The European system, in INTERNATIONAL CRIMINAL PROCEDURE (M. Cherif Bassiouni, ed., 1986);
64. Harding & Swart, supra note 30.
65. Julian Schutte, ibid., p. 333.
66. G.A. Res. 45/118 (Dec. 14, 1990).
67. A copy of the manual can be found at 〈http://www.ifs.univie.ac.at/pr2gql/ rev4344.html#issue〉 (visited Feb. 23, 2000).
68. United Nations Manual on the Prevention and Control of Computer-Related Crime, para. 279 〈http://www.ifs.univie.ac.at/pr2gql/rev4344.htmlttissue〈 (visited Feb. 23, 2000).
69. Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF. 183/9 [hereinafter Rome Statute].
70. Ibid., art. 5. The Rome Statute provides for jurisdiction over the crime of aggression in article 5(1)(d). However, the ICC may not exercise jurisdiction with regard to the crime of aggression until the Statute is amended to included provisions defining the crime and providing the conditions under which the Court may exercise jurisdiction over that crime.
71. Ibid., art. 12. The relevant provisions of article 12 declares
72. The ICC may only proceed with a case if the state of nationality of the defendant is unwilling or unable to undertake a good faith investigation into the alleged crime. See Rome Statute, art. 17.
73. Traditionally, states have only delegated their territorial jurisdiction to a supranation al court on two bases. First, under a theory of the collective exercise of universal jurisdiction (e.g., the Nuremberg and Tokyo Tribunal) and second, as arising from the powers of the United Nations Security Council to take necessary steps to restore and/or maintain international peace and security (e.g., the International Criminal Tribunal for Rwanda and the former Yugoslavia). The ICC, however, does not obtain its jurisdiction from either of these sources. Rather, the Court's jurisdiction over the crimes listed in the Rome Statute may be understood as state delegation of territorial jurisdiction. See Morris, supra note 6.
74. The crimes covered by the Rome Statute are "serious crimes" and, therefore, ratification of the Statute may merely indicate that states are ready to transfer territorial jurisdiction for those types of crimes and not for crimes of a less serious nature.