20 januari: Commissie lanceert Groenboek over het "ne bis in idem"-beginsel
Nieuwsbericht | 19-01-2006
Brussels, 20 January 2006
The Commission has adopted today a Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in idem (according to which nobody can be prosecuted twice for the same offence) in criminal proceedings. With this Green Paper the Commission aims to launch an EU wide consultation of interested parties on the issues relating to conflicts of jurisdiction in criminal matters in the EU, including the principle of ne bis in idem. This Green Paper identifies the current problems and suggests possible solutions. Based on the responses to the Green Paper, the Commission is planning to adopt a Proposal for a Framework Decision on Conflicts of Jurisdiction and the Principle of ne bis in idem in criminal proceedings in the second half of 2006.
With crime becoming more international, judicial authorities are increasingly confronted with situations where several Member States are competent and have an interest to prosecute the same case. Moreover, as the scope of many national criminal jurisdictions has been extended considerably in the past years, such "positive conflicts" of jurisdiction are even more likely to occur. At present, there is no EU rule which prevents parallel prosecutions on the same case. Article 54 of the Convention Implementing the Schengen Agreement (CISA), which applies the ne bis in idem principle between the EU Member States, is the only barrier to parallel prosecutions on the same case in the EU. This principle provides that a person can not be prosecuted by another Member State if he has been finally acquitted or convicted. However, this principle does not prevent parallel prosecutions when criminal proceedings are ongoing neither does it provide for solutions to jurisdiction conflicts, as it comes into play only after a final decision has been delivered in a Member State. Consequently, the principle of ne bis in idem does not determine the best venue for prosecution and only gives preference to whichever national jurisdiction takes a final decision first. Although various EU instruments contain provisions on conflicts of jurisdiction, these provisions do not require the Member States to take concrete steps in order to resolve conflicts of jurisdiction nor do they provide for an effective procedure/mechanism which would adequately facilitate the resolution of such questions. Furthermore, these provisions only apply within specific sectors of criminal law.
Multiple prosecutions can be seriously detrimental both to individual rights and to procedural efficiency. In an EU area of freedom, security and justice it is both appropriate and necessary to limit the occurrence of multiple prosecutions by putting in place a mechanism for solving jurisdiction conflicts. To this end, this Green Paper puts forward suggestions for the creation of a mechanism which would facilitate the allocation of criminal cases, which two or more Member States are interested to prosecute, to the most appropriate jurisdiction before a final decision has been handed down in a Member State.
The suggested mechanism is composed of three steps; (i) informing other Member States about cases which are significantly linked to them, (ii) direct consultations between the Member States concerned with a view to choose the best place to bring a prosecution, (iii) a mediation step which would deal with the situations where the preferred jurisdiction cannot be easily agreed. If a mechanism which would lead to balanced choices of jurisdiction can be put in place, the discussions on ne bis in idem (which were put on hold after the Greek Initiative in 2003 led to significant disagreements) could be re-launched with increased prospects of success.
An associated Commission Staff Working Paper provides a detailed analysis of the suggestions made in the Green Paper.