Changes from report parliamentary committee draft to plenary report

Explanatory Statement - Rapporteur Kanko - Proposal for a Regulation on the transfer of proceedings in criminal matters 2023/0093/COD

Spread of the cross-border crime and especially of serious crime committed by organized groups leads us today to pursuing new actions that would fulfil loopholes in the European legislation.

This is particularly important when investigating transnational crimes perpetrated by organised criminal groups, such as drug trafficking, migrant smuggling, trafficking in human beings, firearms trafficking, environmental crime, cybercrime or money laundering.

The increased number of those cases leads to situations in which several Member States have jurisdiction to investigate and bring to trial the same or related criminal offences.

The current fragmented legal framework however generates several legal issues and difficulties in practice, making often transfers of proceedings to another Member State a cumbersome and not always successful procedure.

Transfers of proceedings are considered a cornerstone of judicial international cooperation but have been so far largely immune from influence by the EU legislator.

National judiciary systems face numerous practical challenges with respect to the transfer of criminal proceedings. This list includes differing rules on evidence, the cost and quality of translations, lack of consultation and coordination as well as time limits for decisions to be taken.

Therefore, Rapporteur recognises an urgent need for a new instrument enhancing judicial cooperation between Member States that will lay down clear rules on the transfer of criminal proceedings from one Member State to another.

Rapporteur stresses that harmonisation in this area will prove to be an important step forward and facilitate the proper administration of justice, prevent impunity, avoid breaches of the ne bis in idem principle and ensure an effective fight against cross-border crime.

Rapporteur believes that there is a clear need for legislation that helps to exclude parallel proceedings and overlapping jurisdictions occurring in situations where the offence has been committed in territories of several Member States, or where the effects of an offence occurs on territories of several Member States.

Rapporteur supports the aim of new proposal providing common rules on transfer of criminal proceedings in order to increase efficiency in fight cross-border crime and to ensure that the best-placed Member State investigates or prosecutes a criminal offence.

Rapporteur however still sees room for further improvement of the current proposal in terms of legal certainty, effectiveness as well as efficiency and presents therefore several changes to the Commission’s text.

Among others Rapporteur:

 determines a more appropriate scope for the transfer of the criminal proceedings not to hinder investigations by proposing practical approach and specifying that this regulation shall apply to all cases in the Union regarding the suspect;

 extends the proposed definition of the victim to legal persons in order to include entities that have suffered harm or economic loss as a direct result of a criminal offence;

 clarifies the role and rights of suspect or accused persons in the procedure of transfer of proceeding by stressing that the negative opinion of the suspect or accused person with regard to the transfer of criminal proceeding shall not prevent such a transfer, given that such decision lies with the competent authority in the requested Member State;clarifying the interests of victims and the rights they are given in the process of transfer of proceedings by entitling already one victim and not only “majority of victims” to suggest the transfer of a criminal proceeding;

 stresses that the suspect or accused person may be informed of the intended transfer of a criminal proceeding only if that information would not prejudice the investigation

 puts forward deadlines that would allow for more efficient and quicker transfer of the criminal proceeding;

 renders the consultations between the requesting and requested authorities obligatory before the request for transfer of criminal proceedings is issued;

 introduces a new provision calling for a coordination between the requested authority and the requesting authority after the transfer, with regard to the provisional measures that have been taken.

Rapporteur believes that this new instrument will contribute to the good administration of justice and particularly to an efficient cooperation between judicial authorities of Member States.