Criteria for requesting the transfer of criminal proceedings
1. A request for the transfer of criminal proceedings may be issued only where the requesting authority considers that the objective of efficient and proper administration of justice, including proportionality, would be better served by conducting the relevant criminal proceedings in another Member State.
2. The requesting authority shall take into account in particular the following criteria when considering whether to request the transfer of criminal proceedings:
(a)
the criminal offence has been committed in whole or in part on the territory of the requested State, or most of the effects of the criminal offence or a substantial part of the damage forming part of the constituent elements of the criminal offence occurred on the territory of the requested State;
(b)
one or more suspects or accused persons are nationals of or residents in the requested State;
(c)
one or more suspects or accused persons are present in the requested State and that State refuses to surrender those persons to the requesting State on the basis of:
(i)
Article 4, point (2), of Framework Decision 2002/584/JHA;
(ii)
Article 4, point (3), of Framework Decision 2002/584/JHA where such refusal is not based on a final judgment passed upon that person in respect of the same criminal offence which prevents further criminal proceedings; or
(iii)
Article 4, point (7), of Framework Decision 2002/584/JHA;
(d)
one or more suspects or accused persons for whom a European arrest warrant has been issued are present in the requested State and that State refuses to surrender those persons, if it finds that, in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the surrender would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as enshrined in Article 6 TEU and the Charter;
(e)
most of the evidence relevant to the investigation is located in, or the majority of the relevant witnesses are residents in, the requested State;
(f)
there are ongoing criminal proceedings in the requested State in respect of the same, partially the same or other facts against the suspect or accused person;
(g)
there are ongoing criminal proceedings in the requested State in respect of the same, partially the same or related facts against other persons;
(h)
one or more suspects or accused persons are serving or are to serve a sentence involving deprivation of liberty in the requested State;
(i)
the enforcement of the sentence in the requested State is likely to improve the prospects of social rehabilitation of the person sentenced or there are other reasons why enforcement of the sentence in the requested State would be more appropriate;
(j)
one or more victims are nationals of or residents in the requested State;
(k)
the competent authorities of the Member States have reached consensus, under Framework Decision 2009/948/JHA or otherwise, on the concentration of the criminal proceedings in one Member State.
For the purposes of the first subparagraph, point (j), the requesting authority shall take due account of child victims and other vulnerable persons.
3. A suspect, accused person or victim may, in accordance with procedures under national law, propose to the competent authorities of the requesting State or of the requested State that criminal proceedings be transferred in accordance with this Regulation. Such proposals shall be considered and recorded in accordance with the recording procedure under the national law of the Member State concerned. If the proposal is made to the competent authority of the requested State, the requested authority may consult the requesting authority. Proposals made under this paragraph shall not create an obligation for the requesting State to request the transfer of or to transfer criminal proceedings to the requested State, or for the requesting authority or requested authority to consult each other.
The rights of the suspect or accused person
1. Before a request for the transfer of criminal proceedings is issued, the requesting authority shall, in accordance with applicable national law, give due consideration to the legitimate interests of the suspect or accused person, including aspects related to restorative justice.
2. The rights set out in paragraphs 3, 4 and 6 of this Article and in Articles 15 and 17 shall apply to suspects or accused persons in criminal proceedings from the time they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty.
3. The requesting authority shall, prior to issuing a request for the transfer of criminal proceedings:
(a)
inform the suspect or accused person, in accordance with applicable national law and in a language which the suspect or accused person understands, of its intention to issue a request for the transfer of criminal proceedings; and
(b)
provide the suspect or accused person with an opportunity to state an opinion on such transfer, including on aspects related to restorative justice.
The requesting authority shall not be required to fulfil the obligations laid down in the first subparagraph of this paragraph where:
(a)
the fulfilment of those obligations would undermine the confidentiality of an investigation or otherwise prejudice the investigation;
(b)
the suspect or accused person cannot be located or reached despite reasonable efforts being made by the requesting authority; or
(c)
the request for the transfer of criminal proceedings follows a proposal from the suspect or accused person under Article 5(3).
4. Where the suspect or accused person decides to state an opinion as referred to in paragraph 3, first subparagraph, point (b), the suspect or accused person shall deliver that opinion no later than ten days after having been informed of the intention to issue a request for transfer and provided with the opportunity to state an opinion under paragraph 3. That opinion shall be recorded and shall be taken into account by the requesting authority when deciding whether to request the transfer of criminal proceedings. Such recording shall be carried out in accordance with the recording procedure under the national law of the requesting State.
5. In cases where the suspect or accused person is present in the requested State, the requesting authority may, for the purposes of paragraph 3, transmit the completed version of the form set out in Annex II to the requested authority. In such cases, the obligations under paragraphs 3 and 4 shall apply mutatis mutandis to the requested authority, who shall inform the requesting authority accordingly. If that suspect or accused person states an opinion, the requested authority shall transmit it to the requesting authority.
6. Where the requesting authority issues a request for the transfer of criminal proceedings and the suspect or accused person has been informed in accordance with paragraph 3, it shall inform the suspect or accused person, without undue delay in a language which the suspect or accused person understands, that the request has been issued.
7. In cases where the suspect or accused person is present in the requested State, the requesting authority may, for the purposes of paragraph 6, transmit the completed version of the form set out in Annex III to the requested authority. In such cases, the obligations under paragraph 6 shall apply mutatis mutandis to the requested authority, which shall inform the requesting authority accordingly.
The rights of the victim
1. Before a request for the transfer of criminal proceedings is issued, the requesting authority shall, in accordance with applicable national law, give due consideration to the legitimate interests of the victim, including aspects related to restorative justice.
2. Where the victim is a natural person who resides in the requesting State and receives the information about the criminal proceedings in accordance with Article 6(1) of Directive 2012/29/EU, as implemented in national law, or is a legal person that is established in the requesting State and receives such information in accordance with national law, the requesting authority shall, prior to issuing a request for the transfer of criminal proceedings:
(a)
inform the victim, in accordance with applicable national law and in a language which the victim understands, of its intention to issue a request for the transfer of criminal proceedings; and
(b)
provide the victim with an opportunity to state an opinion on such transfer, including on aspects related to restorative justice.
The requesting authority shall not be required to fulfil the obligations laid down in the first subparagraph of this paragraph where:
(a)
the fulfilment of those obligations would undermine the confidentiality of an investigation or otherwise prejudice the investigation; or
(b)
the request for the transfer of criminal proceedings follows a proposal from the victim under Article 5(3).
3. Where the victim decides to state an opinion as referred to in paragraph 2, first subparagraph, point (b), the victim shall deliver that opinion no later than ten days after having been informed of the intention to issue a request for transfer and provided with the opportunity to state an opinion under paragraph 2. That opinion shall be recorded and shall be taken into account by the requesting authority when deciding whether to request the transfer of criminal proceedings. Such recording shall be carried out in accordance with the recording procedure under the national law of the requesting State.
4. Where the requesting authority issues a request for the transfer of criminal proceedings and the victim has been informed in accordance with paragraph 2, it shall inform the victim, without undue delay in a language which the victim understands, that the request has been issued.
Procedure for requesting the transfer of criminal proceedings
1. The request for the transfer of criminal proceedings shall be drawn up by the requesting authority using the request form set out in Annex I. The requesting authority shall sign the request form and shall certify its content as being accurate and correct.
2. The request for the transfer of criminal proceedings shall be duly substantiated and shall, in particular, contain the following information:
(a)
information about the requesting authority;
(b)
a description of the criminal offence which is the subject of the criminal proceedings, and the applicable provisions of the criminal law of the requesting State;
(c)
the reasons why the transfer of criminal proceedings is necessary and appropriate and in particular which of the criteria under Article 5(2) are applicable;
(d)
the necessary information available on the suspect or accused person and the victim;
(e)
an assessment of the impact of the transfer of criminal proceedings on the rights of the suspect or accused person and the victim, on the basis of information available to the requesting authority including, where applicable, the opinion of the persons concerned, obtained in accordance with Article 6(3) and (4) or Article 7(2) and (3), or the proposals made under Article 5(3);
(f)
information on procedural acts or measures with a bearing on the criminal proceedings that have been undertaken in the requesting State, including any ongoing temporary coercive measures and the time-limit for the application of such measures;
(g)
any applicable specific conditions for the processing of personal data pursuant to Article 9(3) of Directive (EU) 2016/680.
3. Where the suspect or accused person has stated an opinion under Article 6(3) and (4) or where the victim has stated an opinion under Article 7(2) and (3), that opinion shall be forwarded to the requested authority together with the request for the transfer of criminal proceedings. If the opinion of the suspect, accused person or victim was stated orally, the requesting authority shall ensure that the written record of such statement is available to the requested authority.
4. Where necessary, the request for the transfer of criminal proceedings shall be accompanied by any additional relevant information and documents.
5. The completed request form as referred to in paragraph 1 of this Article, as well as the essential parts of any other written information accompanying the request for the transfer of criminal proceedings, shall be translated into an official language of the requested State or any other language accepted by the requested State in accordance with Article 32(1), point (d).
6. The requesting authority shall transmit the request for the transfer of criminal proceedings directly to the requested authority or, where applicable, with the involvement of the central authority referred to in Article 20. The requesting authority and requested authority shall carry out all other official communication directly or, where applicable, with the involvement of the central authority referred to in Article 20.
7. Where the requested authority is not known to the requesting authority, the requesting authority shall make all necessary inquiries, including through the contact points of the European Judicial Network as provided for by Council Decision 2008/976/JHA ( 36 ) , in order to determine which authority is competent in the requested State for taking the decision under Article 11(1).
8. Without undue delay and in any event within 7 days of receipt of a request form as referred to in paragraph 1 of this Article, the requested authority shall send to the requesting authority an acknowledgement of receipt. That obligation applies both to the central authority referred to in Article 20, where applicable, and to the requested authority which receives the request for the transfer of criminal proceedings from the central authority.
9. Where the authority in the requested State which received the request for the transfer of criminal proceedings has no competence to take a decision under Article 11(1), it shall without undue delay transmit the request to the competent requested authority in the same Member State and shall inform the requesting authority accordingly.
Information to be provided by the requesting authority after the transmission of the request
1. The requesting authority shall inform the requested authority without undue delay of any procedural acts or measures with a bearing on the criminal proceedings that have been undertaken in the requesting State after the transmission of the request for the transfer of criminal proceedings, and shall provide all relevant documents.
2. The information referred to in paragraph 1 and the essential parts of the relevant documents provided in accordance with that paragraph shall be translated by the requesting authority into an official language of the requested State or any other language accepted by the requested State in accordance with Article 32(1), point (d).
Withdrawal of the request
1. The requesting authority may withdraw the request for the transfer of criminal proceedings at any time before receiving the decision of the requested authority to accept or refuse the transfer of criminal proceedings in accordance with Article 11(1). In such cases, the requesting authority shall immediately inform the requested authority accordingly.
2. The requesting authority shall inform the suspect or accused person that has been informed in accordance with Article 6(3) and the victim that has been informed in accordance with Article 7(2) about the withdrawal of the request for the transfer of criminal proceedings, and shall do so in a language which they understand.
3. In cases where the suspect or accused person is present in the requested State, the requesting authority may, for the purpose of providing the information referred to in paragraph 2, transmit the completed version of the form set out in Annex VI to the requested authority. In such cases, the requested authority shall provide that information to the suspect or accused person and inform the requesting authority accordingly.
4. Where the requesting authority has informed the requested authority, in accordance with paragraph 1, of the withdrawal of the request for the transfer of criminal proceedings, the criminal proceedings shall remain with the requesting authority.
Decision of the requested authority
1. The requested authority shall take a decision on whether to accept or refuse the transfer of criminal proceedings in whole or in part, and shall decide, in accordance with its national law, on the measures to be taken. A decision to accept the transfer of criminal proceedings shall be duly reasoned.
2. The requested authority shall communicate the decision referred to in paragraph 1 of this Article to the requesting authority, in accordance with the time-limits set out in Article 13.
3. If the requested authority considers the information communicated by the requesting authority to be insufficient to allow it to decide whether to accept or refuse the transfer of criminal proceedings, it may request additional information as it deems necessary. The requesting authority shall provide the requested additional information without undue delay, if available, accompanied by a translation into an official language of the requested State or any other language accepted by the requested State in accordance with Article 32(1), point (d).
4. If the requested authority decides to refuse the transfer of criminal proceedings in accordance with Article 12, it shall inform the requesting authority of the reasons for such refusal.
5. Where the requesting authority has received the reasoned decision to accept the transfer of criminal proceedings pursuant to paragraph 1 of this Article, the requesting authority shall without undue delay forward to the requested authority the original or a certified copy of the case file or relevant parts thereof, accompanied by their translation into an official language of the requested State or any other language accepted by the requested State in accordance with Article 32(1), point (d).
6. If the criminal proceedings are discontinued in accordance with Article 21, the requesting authority shall without undue delay transmit any remaining relevant parts of the case file, in original or certified copy, including relevant physical evidence, to the requested authority. In the event that a certified copy of the case file has already been provided to the requested authority, the requesting authority shall, upon request of the requested authority, transmit the original documents of the case file. The requesting State may require that the original documents of the case file or physical evidence be returned to it when those documents or that evidence is no longer required in the requested State or at the end of the proceedings in the requested State. Where the requesting State, if asked to do so by the requested State, has indicated that it does not intend to recover the original documents of the case file or the physical evidence when it is no longer required or at the end of the proceedings, the requested State may determine, in accordance with its national law, how to deal with the remaining evidence, including whether to preserve or destroy such evidence.
7. For the purposes of paragraphs 5 and 6, the requesting authority and requested authority may consult each other in order to determine the relevant parts of the case file to be forwarded and translated.
Grounds for refusal
1. The requested authority shall refuse the transfer of criminal proceedings, in whole or in part, where criminal proceedings under the national law of the requested State cannot be brought or pursued in relation to the facts underlying the request for the transfer of criminal proceedings if one or more of the following grounds apply:
(a)
the conduct in connection with which the request was made does not constitute a criminal offence under the national law of the requested State;
(b)
taking over criminal proceedings would be contrary to the principle of ne bis in idem;
(c)
the suspect or accused person cannot be held criminally liable for the criminal offence due to that suspect or accused person’s age;
(d)
the criminal prosecution is statute-barred in accordance with the national law of the requested State;
(e)
the conditions for prosecuting the criminal offence in the requested State are not fulfilled;
(f)
the criminal offence is covered by amnesty in accordance with the national law of the requested State;
(g)
the requested State does not have jurisdiction over the criminal offence in accordance with national law or jurisdiction on the basis of Article 3.
2. The requested authority may refuse the transfer of criminal proceedings, in whole or in part, if one or more of the following grounds apply:
(a)
privilege or immunity under the national law of the requested State makes it impossible to take action;
(b)
the requested authority considers that the transfer of criminal proceedings is not in the interests of efficient and proper administration of justice;
(c)
the criminal offence has not been committed either in whole or in part on the territory of the requested State, most of the effects or a substantial part of the damage forming part of the constituent elements of the criminal offence did not occur on the territory of that State, and the suspect or accused person is not a national of or a resident in that State;
(d)
the request form as referred to in Article 8(1) is incomplete or manifestly incorrect and has not been completed or corrected following consultation referred to in paragraph 3 of this Article;
(e)
the conduct in connection with which the request was made is not a criminal offence at the place where it was committed, and the requested State has no original jurisdiction under its national law to prosecute the criminal offence.
3. Where any of the grounds referred to in paragraphs 1 and 2 apply, before deciding to refuse the transfer of criminal proceedings, either in whole or in part, the requested authority shall, where appropriate, consult the requesting authority and, where necessary, request that the requesting authority provide any necessary information without undue delay.
4. Where the ground referred to in paragraph 2, point (a), applies, and where the power to waive the privilege or immunity lies with an authority of the requested State, the requested authority shall request that that authority exercise that power without undue delay. Where power to waive the privilege or immunity lies with an authority of another State or international organisation, the requesting authority shall request that that authority or international organisation exercise that power.
Time-limits
1. The requested authority shall communicate to the requesting authority its decision on whether to accept or refuse the transfer of criminal proceedings without undue delay and in any event no later than 60 days after the receipt of the request for the transfer of criminal proceedings by the competent requested authority.
2. If in a specific case the requested authority cannot meet the time-limit set out in paragraph 1, it shall without undue delay inform the requesting authority accordingly, giving reasons for the delay. In such cases, the time-limit set out in paragraph 1 may be extended by a maximum of 30 days.
3. Where there is privilege or immunity under the national law of the requested State, the time-limit set out in paragraph 1 shall commence only from the day on which the requested authority is informed of the fact that the privilege or immunity has been waived.
Consultations between the requesting authority and requested authority
1. Where necessary and without prejudice to Article 11(3), (5), (6) and (7), Article 13(3) and Article 19(2), the requesting authority and requested authority shall consult each other without undue delay to ensure the efficient application of this Regulation.
2. Consultations between the requesting authority and requested authority may also take place before the request for the transfer of criminal proceedings is issued, in particular with a view to determining whether the transfer would serve the interests of efficient and proper administration of justice, including whether it is proportionate. In order to propose that criminal proceedings from the requesting State be transferred, the requested authority may also consult the requesting authority as to whether it would be possible to issue a request for the transfer of criminal proceedings.
3. Where the requesting authority consults the requested authority prior to making a request for the transfer of criminal proceedings, it shall make information regarding the criminal proceedings available to the requested authority, unless to do so would undermine the confidentiality of an investigation or otherwise prejudice the investigation.
4. Where authorities receive requests for consultations under this Article, they shall answer them without undue delay.
Information to be provided to the suspect and accused person about the decision to accept or refuse the transfer
1. Where the requested authority has taken a decision in accordance with Article 11(1) to accept the transfer of criminal proceedings, the requested authority shall, without undue delay, in a language which the suspect or accused person understands:
(a)
inform the suspect or accused person about the decision to accept the transfer of criminal proceedings;
(b)
provide the suspect or accused person with a copy of the reasoned decision to accept the transfer of criminal proceedings; and
(c)
inform the suspect or accused person about the right to an effective legal remedy in the requested State, including the time-limits for such a remedy.
Where appropriate, the requested authority may seek the assistance of the requesting authority in order to carry out the tasks referred to in this paragraph.
2. In cases where the suspect or accused person is present in the requesting State, the requested authority may, for the purposes of paragraph 1, transmit the completed version of the form set out in Annex IV to the requesting authority. In such cases, the obligations under paragraph 1 shall apply mutatis mutandis to the requesting authority, which shall inform the requested authority accordingly.
3. Where the requested authority has taken a decision in accordance with Article 11(1) to refuse the transfer of criminal proceedings, the requesting authority shall inform the suspect or accused person, without undue delay in a language which the suspect or accused person understands, about the decision to refuse the transfer.
Where appropriate, the requesting authority may seek the assistance of the requested authority in order to carry out the tasks referred to in this paragraph.
4. In cases where the suspect or accused person is present in the requested State, the requesting authority may, for the purposes of paragraph 3, transmit the completed version of the form set out in Annex IV to the requested authority. In such cases, the obligation under paragraph 3 shall apply mutatis mutandis to the requested authority, which shall inform the requesting authority accordingly.
5. The requested authority shall not be required to fulfil the obligations laid down in paragraph 1 and the requesting authority shall not be required to fulfil the obligations laid down in paragraph 3 where:
(a)
the fulfilment of those obligations would undermine the confidentiality of an investigation or otherwise prejudice the investigation; or
(b)
the suspect or accused person cannot be located or reached despite reasonable efforts being made by the requested authority or the requesting authority, respectively.
Information to be provided to the victim about the decision to accept or refuse the transfer
1. Where the requested authority has taken a decision in accordance with Article 11(1) of this Regulation to accept the transfer of criminal proceedings, and the victim is a natural person who resides in the requesting State and receives the information about the criminal proceedings in accordance with Article 6(1) of Directive 2012/29/EU, as implemented in national law, or is a legal person that is established in the requesting State and receives such information in accordance with national law, the requested authority shall, without undue delay, inform the victim in a language which the victim understands about:
(a)
the decision to accept the transfer by the requested authority; and
(b)
the victim’s right to an effective legal remedy in the requested State, including the time-limits for such a remedy.
Where appropriate, the requested authority may seek the assistance of the requesting authority in order to carry out the tasks referred to in this paragraph.
2. In cases where the victim is present in the requesting State, the requested authority may, for the purposes of paragraph 1, transmit the completed version of the form set out in Annex V to the requesting authority. In such cases, the obligations under paragraph 1 shall apply mutatis mutandis to the requesting authority, which shall inform the requested authority accordingly.
3. Where the requested authority has taken a decision in accordance with Article 11(1) of this Regulation to refuse the transfer of criminal proceedings, and the victim is a natural person who resides in the requesting State and receives the information about the criminal proceedings in accordance with Article 6(1) of Directive 2012/29/EU, as implemented in national law, or is a legal person that is established in the requesting State and receives such information in accordance with national law, the requesting authority shall, without undue delay, inform the victim in a language which the victim understands, about the decision to refuse the transfer.
4. The requested authority shall not be required to fulfil the obligations laid down in paragraph 1 and the requesting authority shall not be required to fulfil the obligations laid down in paragraph 3 where:
(a)
the fulfilment of those obligations would undermine the confidentiality of an investigation or otherwise prejudice the investigation; or
(b)
the victim cannot be located or reached despite reasonable efforts being made by the requested authority or the requesting authority, respectively.
Right to an effective legal remedy
1. Suspects, accused persons and victims shall have the right to an effective legal remedy in the requested State against a decision to accept the transfer of criminal proceedings. That right shall be exercised before a court or tribunal in the requested State in accordance with its national law.
2. If a legal remedy is sought against a decision to accept the transfer of criminal proceedings, the decision shall be examined in accordance with national law on the basis of the criteria provided for in Article 12(1) and (2). Insofar as discretion was exercised, the review shall be limited to assessing whether the requested authority has manifestly exceeded the limits of its discretion.
The time-limit for seeking an effective legal remedy shall be no longer than 15 days from the date of receipt of the reasoned decision to accept the transfer of criminal proceedings.
Where the request for the transfer of criminal proceedings is issued after the criminal investigation has been completed, and the suspect or accused person has been charged or indicted, the invocation of a legal remedy against a decision to accept the transfer of criminal proceedings shall have suspensive effect. Such suspensive effect shall not affect the possibility for the requested State to maintain provisional measures necessary to prevent the suspect or accused person from absconding, or to preserve evidence, instrumentalities of a criminal offence or the proceeds of crime.
The final decision on the legal remedy shall be taken without undue delay and, where possible, within 60 days.
The requested authority shall inform the requesting authority about the final outcome of the legal remedy sought. Where the final outcome of the legal remedy is that the decision to accept the transfer of criminal proceedings is overturned, the criminal proceedings shall revert to the requesting authority.
This paragraph shall be without prejudice to any further legal remedies that are available in accordance with national law.
3. The requested State shall ensure that suspects, accused persons and victims have the right of access to all documents related to the transfer of criminal proceedings that formed the basis for the decision to accept a transfer of criminal proceedings under this Regulation and that are necessary to effectively exercise their right to a legal remedy. The right of access to such documents shall be exercised in accordance with procedures under the national law of the requested State. Such access may be limited, subject to national law, where it would undermine the confidentiality of an investigation or otherwise prejudice the investigation or harm the safety of persons.
Cooperation with Eurojust and the European Judicial Network
The requesting authority and requested authority may, at any stage of the procedure for a transfer of criminal proceedings, request the assistance of Eurojust or the European Judicial Network in accordance with their respective competences. In particular Eurojust may, where appropriate, facilitate consultations referred to in Article 11(3), (5), (6) and (7), Article 12(3), Article 14, Article 19(2) and Article 21(3).
Costs of transfers of criminal proceedings
1. Each Member State shall bear its own costs of transfers of criminal proceedings resulting from the application of this Regulation.
2. Where the translation of the case file and other relevant documents under Article 11(3), (5), (6) and (7) would entail large or exceptional costs, the requesting authority may submit a proposal to the requested authority that the costs be shared. Such proposal shall be accompanied by a detailed breakdown of the costs incurred by the requesting authority. Following such a proposal, the requesting authority and the requested authority shall consult each other.
Designation of central authorities
Each Member State may designate one or more central authorities responsible for the administrative transmission and receipt of requests for the transfer of criminal proceedings, as well as for other official correspondence relating to such requests.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
