Changes from report parliamentary committee draft to plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

▸8 unchanged paragraphs

on the proposal for a regulation of the European Parliament and of the Council on the transfer of proceedings in criminal matters

(COM(2023)0185 – C90128/2023 – 2023/0093(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2023)0185),

– having regard to Article 294(2) and Article 82(1), points (b) and (d) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90128/2023),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to Rule 59 of its Rules of Procedure,

Changed– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A90000/2023),(A9-0008/2024),

▸4 unchanged paragraphs

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Recital 7: (7) This Regulation should apply to all requests issued within the framework of criminal proceedings.

Change 1

RemovedRecital 20: (20) This Regulation does not affect procedural rights as enshrined in Union law, such as the Charter, the procedural rights directives 2010/64/EU54 , 2012/13/EU55 , 2013/48/EU56 , (EU) 2016/34357 , (EU) 2016/80058 and (EU) 2016/191959 . The requesting authority should ensure that the procedural rights under Union and national law are respected when requesting a transfer of criminal proceedings under this Regulation.

AddedRecital 16: (16) This Regulation provides jurisdiction in specific cases, in order to ensure that, for criminal proceedings to be transferred in accordance with this Regulation, wherever the interests of efficient and proper administration of justice and the effective protection of fundamental rights of the suspect or accused persons, as well as of the victims, as enshrined in Union law, so require, the requested State can exercise jurisdiction for the criminal offences to which the law of the requesting State is applicable. The requested State should have jurisdiction to try the criminal offences for which the transfer is sought, whenever that Member State is considered as being the best placed one to prosecute.

Change 2

ChangedRecital 25:17: (25)(17) WhereIn addition to the suspectsjurisdiction orwhich accusedis personsalready aredetermined nationalsby the national law of the requested StateState, orjurisdiction residentsshould be established based on specific grounds mentioned in this Regulation whenever that State,Member aState transferis ofconsidered criminalas proceedingsbeing mightthe bebest justifiedplaced forone theto purposeprosecute. ofThe ensuringrequested theState rightshould ofhave jurisdiction in situations where the suspectsrequested State refuses to surrender a suspect or accused personsperson tofor bewhom presenta atEuropean trial,arrest inwarrant accordancehas withbeen Directiveissued (EU)and 2016/343.who Similarly,is wherepresent in the victimsrequested areState nationalsand is a national of or residentsa inresident thein requestedthat State, awhere transfersuch refusal is based on specific grounds mentioned in this Regulation. For example, Article 4(7) of Framework Decision 2002/584/JHA can be justifiedapplied toin allowsituations victimswhere tooffences easilyare participatecommitted in the criminalterritory proceedingsof anda torequested beState effectivelyor examinedin a third country by third country nationals This is particularly important as witnessesregards duringserious thecrimes proceedings.violating Infundamental casesvalues whereof the surrenderinternational ofcommunity, asuch suspectas orwar accusedcrimes personor forgenocide, whomwhere a Europeanrisk Arrestof Warrantimpunity wasmight issuedarise isdue refusedto ina theEuropean arrest warrant being refused. A requested State onshould also have jurisdiction when the groundscriminal specifiedoffence inproduces thisits Regulation,effects aor transfercauses maydamages alsomainly in the requested State. Damage should be justifiedtaken wheninto thataccount personwhenever it is presentone of the constituent elements of the criminal offence, in accordance with the law of the requested State. The requested State whileshould notalso beinghave ajurisdiction nationalwhen ofcriminal orproceedings aare residentalready ongoing in that State.State against …

Change 3

AddedRecital 20: (20) This Regulation does not affect procedural rights as enshrined in Union law, such as the Charter, the procedural rights directives 2010/64/EU54, 2012/13/EU55, 2013/48/EU56, (EU) 2016/34357, (EU) 2016/80058 and (EU) 2016/191959. The requesting authority should ensure that the procedural rights under Union and national law are respected when requesting a transfer of criminal proceedings under this Regulation.

AddedRecital 23: (23) This Regulation should not impose any obligation to request a transfer of criminal proceedings. When assessing whether a request for transfer of criminal proceedings should be issued, the requesting authority should examine whether such a transfer is necessary, appropriate, as well as proportionate. Consequently, the requesting authority should, prior to issuing a request for a transfer, undertake an examination of the case to clarify the relevant facts and identify pertinent evidence in order to ascertain the necessity, appropriateness and proportionality of a transfer. This assessment should be carried out on a case-by-case basis in order to identify the Member State that is best placed to prosecute the criminal offence in question, taking into account all the relevant criteria specified in this Regulation on the basis of the investigative efforts undertaken in the requesting state prior to the issuance of the request for a transfer.

AddedRecital 25: (25) Where the suspects or accused persons are nationals of the requested State or residents in that State, a transfer of criminal proceedings might be justified for the purpose of ensuring the right of the suspects or accused persons to be present at trial, in accordance with Directive (EU) 2016/343. Similarly, where the victim or victims are nationals or residents in the requested State, a transfer can be justified to allow victims to easily participate in the criminal proceedings and to be effectively examined as witnesses during the proceedings. In cases where the surrender of a suspect or accused person for whom a European Arrest Warrant was issued is refused in the requested State on the grounds specified in this Regulation, a transfer may also be justified when that person is present in the requested State while not being a national of or a resident in that State.

Recital 26: (26) It is for the requesting authority to assess on the basis of material before it, whether there are reasonable grounds to believe that the suspect, accused person or the victim resides in the requested State. Where only limited information is available, such an assessment could also be the object of consultations between the requesting and requested authorities. Various objective circumstances that could indicate that the person concerned has established the habitual centre of his or her interests in a particular Member State or has the intention to do so, can be of relevance. Reasonable grounds to believe that a person resides in the requested State could exist, in particular, where a person is registered as a resident in the requested State, by holding an identity card, a residence permit, or a registration in an official residence register. Where that person is not registered in the requested State, residence could be indicated by the fact that a person manifested the intention to settle in that Member State or has acquired, following a stable period of presence in that Member State, certain connections with that Member State which are of a similar degree as those resulting from establishing a formal residence in that Member State. In order to determine whether, in a specific situation, there are sufficient connections between the person concerned and the requested State giving rise to reasonable grounds to believe that the person concerned resides in that State, it is…

Change 4

ChangedRecital 29: (29) Suspects or accused persons or victims should have the possibility to suggestrequest thatfor the criminal proceedings concerning them to be transferred to another Member State. These suggestionsrequests should not however impose any obligation on the requesting or requested authority to request or transfer criminal proceedings.proceedings; thus, if the requesting authority decides to transfer the criminal proceedings following a request made by suspects or accused persons or victims, the decision on the request for transfer should be taken by the competent authorities of the requested State. A negative opinion of the suspect or accused person or of the victim with regards to the transfer of criminal proceedings should not prevent such transfer if the requested authority decides to accept the transfer in accordance with Article 12. If the authorities become aware of parallel criminal proceedings on the basis of a suggestion forrequest aof transfer submitted by the suspect or accused person, or the victim, or a lawyer on their behalf, then they are under the obligation to consult each other in accordance with the Framework Decision 2009/948/JHA.

Change 5

ChangedRecital 30: (30) The requesting authority should inform as soon as possible the suspect or accused person of the intended transfer and should provide for the possibility for such person to express their opinion orally or in writing, in accordance with applicable national law, to enable the authorities to take into account and register their legitimate interests before issuing a request for transfer. When assessing the legitimate interest of the suspect or accused person to be informed about the intended transfer, the requesting authority should take into accountaccount, the need to ensure confidentiality of an investigation and the risk of prejudicing criminal proceedings against that person, e.g. whenever it is necessary to safeguard an important public interest, such as in cases where such information could prejudice ongoing covert investigations or seriously harm the national security of the Member State in which the criminal proceedings are instituted. WhereBased theon requestingthose authorityelements cannotand locatewhere orappropriate, reachthere might be situations where the suspect or accused person despiteis itsnot reasonableinformed effortsabout beingthe made,intended transfer, for example where there is the obligationneed to informprotect sucha witness or a victim before protection measures are be adopted in the requesting State, or where it would prejudice another investigation that is intrinsically linked to the criminal proceeding being transferred. The suspect or accused person or the lawyer acting on behalf of that person should applyalso frombe thekept momentinformed theseof circumstancessubstantial change.developments …

Change 6

RemovedArticle 1 – paragraph 2: 2. This Regulation shall apply in all cases of transfer of criminal proceedings in the Union regarding suspects.

AddedRecital 31: (31) The rights of victims set out in Directive 2012/29/EU of the European Parliament and of the Council63 including the right to information, should be taken into account in applying this Regulation. In exceptional cases, for example due to the high number of victims involved in a case, it should be possible to provide information to victims through the press, through an official website of the competent authority or through a similar communication channel, in line with Directive 2012/29/EU. This Regulation should not be interpreted as preventing Member States from granting victims more extensive rights under national law than those laid down in Union law.

AddedRecital 34 a (new): (34a) Member States should provide that suspects, accused persons and victims have the right of access to the file as well as any other procedural rights which are necessary to exercise their right to an effective remedy. Access to the file should be limited to the documents related to the transfer of criminal proceedings and in order to exercise their right to an effective remedy.

AddedRecital 38: (38) Until the requested authority has not taken a decision to accept a transfer of criminal proceedings, the requesting authority should be able to withdraw the request, for instance when it becomes aware of further elements due to which the transfer no longer appears justified. The decision to withdraw the request should be justified in writing and be shared with the suspect or accused persons and the victims.

AddedRecital 40: (40) Transfer of a criminal proceeding should not be refused on grounds other than those provided for in this Regulation. To be able to accept the transfer of criminal proceedings, prosecution of the facts underlying the criminal proceedings that are subject to the transfer should be possible in the requested State. The requested authority should not accept the transfer of criminal proceedings when the conduct for which transfer is sought is not a criminal offence in the requested State, or when the requested State does not have jurisdiction over that criminal offence, unless it exercises jurisdiction provided under this Regulation. Furthermore, the transfer of criminal proceedings should not be accepted in case of other impediments to prosecution in the requested State. The requested authority should also be able to refuse a transfer of criminal proceedings, if the suspect or accused person benefits from an immunity or privilege in accordance with the law of the requested State, e.g. in relation to certain categories of persons (such as diplomats) or specifically protected relationships (such as lawyer-client privilege), or if the requested authority believes that such transfer is not justified by the interests of efficient and proper administration of justice, for instance because none of the criteria for requesting a transfer of criminal proceedings are met, or if the request form for transfer is incomplete or was incorrectly completed by the requesting authority, thus not…

AddedRecital 43: (43) The acceptance of transfer of criminal proceedings by the requested authority should result in the suspension or discontinuation of criminal proceedings in the requesting State to avoid duplication of measures in the requesting and requested State. This should be without prejudice to investigations or other procedural measures which may be necessary to execute decisions based on mutual recognition instruments or to comply with requests for mutual legal assistance linked to the proceedings subject to the transfer. The notion of ‘investigative or other procedural measures’ should be interpreted broadly, as including not only any measure for the purpose of gathering evidence, but also any procedural act imposing pre-trial detention or any other interim measure. To avoid abusive challenges and ensure that the criminal proceedings are not suspended at length, if a legal remedy with a suspensive effect granted under national law has been invoked in the requested State the criminal proceedings should not be suspended nor discontinued in the requesting State until a decision on the remedy has been taken in the requested State.

AddedRecital 43 a (new): (43a) Once a transfer of proceedings has been granted and in order to facilitate an efficient process of the transfer the requesting and requested authorities should be able to consult each other to determine the necessary documents or parts of such documents to be forwarded, as well as to be translated, where necessary. However, the decision to only send parts of the documents should be balanced and based on a careful consideration of the documents in question so as to not prejudice the fairness of the proceedings.

AddedRecital 49: (49) Each Member State should bear its own costs of transfers of criminal proceedings, including those related to the exercise of procedural rights to which the suspect or the accused person is entitled to in each of the Member States concerned, in accordance with the applicable Union and national law. Member States should not be able to claim from each other compensation for costs resulting from the application of this Regulation. However, when the requesting State has incurred large or exceptional costs, related to the translation of the documents in the case file to be transferred to the requested State, a proposal by the requesting authority to share the costs should be considered by the requested authority.

AddedRecital 50: (50) The use of a standardised request form translated in all official Union languages should facilitate cooperation and the exchange of information between the requesting and requested authorities, allowing them to take a decision on the request for transfer more quickly and effectively. It also reduces translation costs and contributes to higher quality of requests.

AddedRecital 51: (51) The request form should only include personal data necessary to facilitate the requested authority’s decision on the request. The request form should contain an indication of the categories of personal data, such as whether the related person is suspect, accused or victim, as well as the specific fields for each of these categories.

AddedRecital 52: (52) In order to effectively address a possible need for improvement regarding the request form to be used to request transfer of criminal proceedings, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission to amend the Annex to this Regulation. It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making67. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

AddedRecital 53: (53) In order to ensure swift, direct, interoperable, reliable and secure exchange of case-related data, communication under this Regulation between the requesting and requested authorities and with the involvement of central authorities, where a Member State has designated a central authority, as well as with Eurojust, should as a rule be carried out through the decentralised IT system within the meaning of Regulation (EU) 2023/2844 of the European Parliament and of the Council68. In particular, the decentralised IT system should, as a rule, be used for the exchange of the request form and of any other relevant information and documents, and all other communication between the authorities under this Regulation. In cases where one or more of the exceptions mentioned in the Regulation (EU) 2023/2844 apply, in particular, where the use of the decentralised IT system is not possible or appropriate, other means of communication may be used as specified in that Regulation. / 68 Regulation (EU) 2023/2844 of the European Parliament and of the Council of 13 December 2023 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation (OJ L, 2023/2844, 27.12.2023, ELI: http://data.europa.eu/eli/reg/2023/2844/oj).

AddedRecital 55: (55) The Commission should be responsible for the creation, maintenance and development of this reference implementation software. The Commission should design, develop and maintain the reference implementation software in a way that allows the controllers to ensure compliance with the data protection requirements and principles laid down in Regulation (EU) 2018/1725 of the European Parliament and of the Council69 and Directive (EU) 2016/680 of the European Parliament and of the Council71, in particular the obligations of data protection by design and by default as well as high level of cybersecurity. The reference implementation software should also include appropriate technical measures and enable the organisational measures necessary for ensuring an appropriate level of security and interoperability, taking into account that special categories of data may also be exchanged. The Commission does not process personal data in the context of creation, maintenance and development of this reference implementation software. / (deleted)

AddedArticle 1 – paragraph 2: 2. This Regulation shall apply in all cases of transfer of criminal proceedings that are being conducted in Member States of the Union.

Article 2 – paragraph 1 – point 6: (6) ‘victim’ means a victim as defined in Article 2(1), point (a), of Directive 2012/29/EU, or a legal person, as defined by national law, that has suffered harm or economic loss as a direct result of a criminal offence that is the object of criminal proceedings to which this Regulation applies.

Change 7

RemovedArticle 3 – paragraph 1 – introductory part: 1. Unless jurisdiction is already provided for by the national law of the requested State, for the purpose of this Regulation, the requested State shall have jurisdiction over any criminal offence to which the law of the requesting State is applicable, in situations where:

Article 3 – paragraph 2: 2. The jurisdiction established by the requested State exclusively by virtue of paragraph 1 may be exercised only pursuant to a request for transfer of criminal proceedings under this Regulation.

Change 8

RemovedArticle 5 – paragraph 2 – point i: deleted

AddedArticle 4 – title: Waiver, suspension or discontinuation of criminal proceedings by the requested State

RemovedArticle 5 – paragraph 2 – point j a (new): (ja) the competent authorities of Member States have reached, following the direct consultations under the Framework Decision 2009/948/JHA, consensus on the concentration of the proceedings in one Member State.

AddedArticle 5 – paragraph 1: 1. A request for transfer of criminal proceedings may only be issued where the requesting authority deems that the objective of an efficient and proper administration of justice would be better served by conducting the relevant criminal proceedings in another Member State and that it is proportionate to do so.

RemovedArticle 5 – paragraph 3: 3. The suspect or accused person, or one or more victims, or a lawyer on their behalf, may in accordance with national procedural law, contact the competent authorities of the requesting State with suggestion to transfer criminal proceedings under the conditions of this Regulation. If such suggestion of the suspect or accused person, or of victims is made to the competent authority in the requesting State, that authority may decide to consult the competent authority in the requested State in accordance with Article 15 (2). Suggestions made under this paragraph shall not create an obligation for the requesting or the requested State to request or transfer criminal proceedings to the requested State. If the requesting authority decides to transfer the criminal proceedings following a suggestion under this paragraph, the decision on the request for transfer is taken by the competent authorities of the requested State.

AddedArticle 5 – paragraph 2 – point j: (j) the victim or victims are nationals of or residents in the requested State.

RemovedArticle 6 – paragraph 1: 1. Before a request for 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.

AddedArticle 5 – paragraph 2 – point j a (new): (ja) the consultations of Member States’ competent authorities under Framework Decision 2009/958/JHA have resulted in an agreement on the concentration of the parallel proceedings in one Member State.

RemovedArticle 6 – paragraph 2: 2. Provided that it would not undermine the confidentiality of an investigation, or otherwise prejudice the investigation, and only where appropriate depending on the circumstances of the case, the suspect or accused person who has already been notified that they are suspected or accused of having committed an offence, may in accordance with applicable national law, be informed of the intended transfer of criminal proceedings, in a language which they understand, and shall be given an opportunity to state their opinion orally or in writing, unless that person cannot be located or reached despite reasonable efforts being made by the requesting authority. Where the requesting authority considers it necessary in view of the suspect’s or accused person’s age or their physical or mental condition, the opportunity to state their opinion shall be given to their legal representative. Where the request for transfer of criminal proceedings follows a suggestion from the suspect or accused person under Article 5(3), such a consultation with the suspect or accused person who made the request is not required.

AddedArticle 5 – paragraph 2 – point j b (new): (jb) whether the transfer of proceedings would contribute to the achievement of restorative justice objectives.

Change 9

ChangedArticle 65 – paragraph 3: 3. The opinionsuspect referredor accused person, the victim or the victims, or a lawyer on their behalf, may request the competent authorities of the requesting State to intransfer paragraphcriminal 2proceedings shallunder bethe delivered,conditions noof laterthis thanRegulation. fiveIf workingsuch daysrequest afterof the suspect or accused personperson, hasor beenof invitedthe victim or victims, or of an acting lawyer on their behalf is made to dothe socompetent andauthority in the requesting State, that authority may decide to consult the competent authority in the requested State in accordance with Article 15(2). Requests made under this paragraph shall benot takencreate intoan accountobligation byfor the requesting authorityor whenthe decidingrequested whetherState to request theor transfer of criminal proceedings.proceedings to the requested State.

Change 10

RemovedArticle 6 – paragraph 3 – subparagraph 1 a (new): The negative opinion of the suspect or accused person with regard to the transfer of criminal proceeding shall not prevent such a transfer if the requested authority decides to accept it in accordance with Article 12.

AddedArticle 6 – paragraph 2: 2. Provided that it would not undermine the confidentiality of an investigation, or otherwise prejudice the investigation, or hamper the proper administration of justice or affect the rights of the victims the suspect or accused person, who has already been notified that they are suspected or accused of having committed an offence, shall, in accordance with applicable national law, be informed of the intended transfer of criminal proceedings, in a language which they understand, and shall be given an opportunity to state their opinion orally or in writing prior to the intended transfer, unless that person cannot be located or reached despite reasonable efforts being made by the requesting authority. Where the requesting authority considers it necessary in view of the suspect’s or accused person’s age or their physical or mental condition, the opportunity to state their opinion shall be given to their legal representative prior to the intended transfer. Where the request for transfer of criminal proceedings follows a request from the suspect or accused person under Article 5(3), such a consultation with the suspect or accused person who made the request is not required.

RemovedArticle 6 – paragraph 4: deleted

AddedArticle 6 – paragraph 3: 3. Where the suspect or accused person decides to state an opinion as referred to in paragraph 2, it shall be delivered no later than ten days after the suspect or accused person has been informed of the intended transfer and given the opportunity to state their opinion. Such opinion shall be taken into account and be registered by the requesting authority when deciding whether to request the transfer of criminal proceedings.

RemovedArticle 7 – paragraph 2: 2. Provided that it would not undermine the confidentiality of an investigation or otherwise prejudice the investigation, victims who reside in the requesting State, and who have requested to receive the information specified in Article 6 (1), point (a) of Directive 2012/29/EU shall, in accordance with applicable national law, and only where appropriate depending on the circumstances of the case, be informed of the intended transfer of criminal proceedings, in a language which they understand, and shall be given an opportunity to state their opinion orally or in writing. Where the requesting authority considers it necessary in view of the victim’s age or his or her physical or mental condition, that opportunity shall be given to victim’s legal representative.

AddedArticle 6 – paragraph 4: 4. Where the suspect or accused person has been informed about the intended transfer in accordance with paragraph 2, the requesting authority shall also inform them immediately, in a language which they understand, about the issuing of the request for transfer of criminal proceedings.

RemovedArticle 7 – paragraph 3: 3. The opinion of the victim referred to in paragraph 2 shall be taken into account by the requesting authority when deciding whether to request the transfer of criminal proceedings. The negative opinion of the victim with regard to the transfer of the criminal proceeding shall not prevent such a transfer if the requested authority decides to accept it in accordance with Article 12.

AddedArticle 7 – paragraph 2: 2. Provided that it would not undermine the confidentiality of an investigation or otherwise prejudice the investigation, or hamper the proper administration of justice or affect the rights of other victims, victims who reside in the requesting State, and who receive the information specified in Article 6(1), point (a), of Directive 2012/29/EU, as implemented by national law, shall in accordance with applicable national law, be informed of the intended transfer of criminal proceedings, in a language which they understand, and shall be given an opportunity to state their opinion orally or in writing. Where the requesting authority considers it necessary in view of the victim’s age or his or her physical or mental condition, that opportunity shall be given to victim’s legal representative.

RemovedArticle 7 – paragraph 4: deleted