Legal Alert | European rules on the transfer of proceedings in criminal matters

On 18December 2024, the Regulation no. 2024/3011 on the Transfer of Proceedings in Criminal Matters was published¹ . The present Legal Alert aims to highlight the main rules that will enter into force with this new important Regulation related to criminal matters.

1. Subject Matter, Scope, and Definitions

Regulation no. 2024/3011 lays down rules on the transfer of criminal proceedings between the Member States aiming to improve the efficient and proper administration of justice within the common area of freedom, security and justice. It applies in all cases of transfer of criminal proceedings conducted in Member States.

For the purposes of this Regulation, the following definitions apply:

• “requesting State” means a Member State in which criminal proceedings are being conducted and in which a request for the transfer of those proceedings to another Member State is issued, or which has initiated or received a request for consultations concerning a possible transfer of criminal proceedings;
• “requested State” means a Member State to which a request for the transfer of criminal proceedings is transmitted for the purpose of taking over those proceedings, or which has received a request for or has initiated consultations concerning a possible transfer of criminal proceedings;
• “requesting authority” means a judge, court, investigating judge or public prosecutor in the requesting State competent in the case concerned or any other competent authority which is designated as such by the requesting State and which, in the case concerned, is acting in its capacity as an investigating authority in criminal proceedings with competence to request the transfer of criminal proceedings in accordance with national law;
• “requested authority” means a judge, court, investigating judge or public prosecutor competent to take a decision on whether to accept or refuse the transfer of criminal proceeding, amongst other competences;
• “decentralised IT system” means a decentralised IT system as defined in Regulation (EU) 2023/2844²;
• “victim” means a victim as defined in Directive 2012/29/EU ³, 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 subject of criminal proceedings to which this Regulation applies.

 2. The Transfer of Criminal Proceedings

a) Criteria for requesting the transfer of criminal proceedings

The transfer procedure begins with a request by the requesting authority. As per Article 5, 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. Article 5 establishes the following criteria in order to request the transfer of criminal proceedings:

• 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;
• one or more suspects or accused persons are nationals of or residents in the requested State;
• 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 Decision 2002/584/JHA⁴;
• 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 the Treaty on European Union and the Charter of Fundamental Rights;
• most of the evidence relevant to the investigation is located in, or the majority of the relevant witnesses are residents in, the requested State;
• 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;
• there are ongoing criminal proceedings in the requested State in respect of the same, partially the same or related facts against other persons;
• one or more suspects or accused persons are serving or are to serve a sentence involving deprivation of liberty in the requested State;
• 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;
• one or more victims are nationals of or residents in the requested State;
• the competent authorities of the Member States have reached consensus, under Framework Decision 2009/948/JHA⁵ or otherwise, on the concentration of the criminal proceedings in one Member State.

The transfer of criminal proceedings may be proposed by any suspect, defendant or victim, under the terms of this Regulation. However, such a proposal does not create an obligation for the State to request the transfer or to transfer the case or for the requesting and requested authorities to consult with each other.

b) Rights of defendants and victims

In Article 6, the Regulation establishes de rights of suspects of defendants and victims within this procedure. In this regard, 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. From the moment one is informed by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence, and subject to exceptions, the suspect or defendant has the right to be informed of the intention to issue a request for the transfer of criminal proceeding and to state an opinion on such transfer. Should this request actually be issued, the suspect or defendant has the right to be informed of its developments.

According to Article 15, where the requested authority has taken a decision to accept the transfer of criminal proceedings, the requested authority shall, without undue delay, in a language which the suspect or accused person understands, inform them of that decision and provide them with a copy of it and its respective rationale. Additionally, the requested authority shall inform the suspect or accused person about the right to an effective legal remedy of that decision. In the same way, where the requested authority has taken a decision to refuse the transfer of criminal proceedings, it shall inform the suspect or defendant.

In turn, Article 7 establishes the rights of the victims. In this regard, 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. Subject to exceptions, the victim also has the right to be informed of the intention to issue a transfer request and to express their opinion on it. Should this request actually be issued, the victim has the right to be informed of its developments.

Lastly, in accordance with Article 17, both the suspects or defendants as well as the victim have the right to an effective legal remedy in the requested State against a decision to accept the transfer of criminal proceedings, that shall be exercised before a court or tribunal in the requested State in accordance with its national law. 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. 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.

c) Grounds for refusal of the transfer of criminal proceedings

In Article 12, the Regulation establishes grounds for compulsory refusal and optional refusal of the transfer of criminal proceedings.

Accordingly, the requested authority shall refuse the transfer of criminal proceedings, in whole or in part, if one or more of the following grounds apply:

• the conduct in connection with which the request was made does not constitute a criminal offence under the national law of the requested State;
• taking over criminal proceedings would be contrary to the principle of ne bis in idem;
• the suspect or accused person cannot be held criminally liable for the criminal offence due to that suspect or accused person’s age;
• the criminal prosecution is statute-barred in accordance with the national law of the requested State;
• the conditions for prosecuting the criminal offence in the requested State are not fulfilled;
• the criminal offence is covered by amnesty in accordance with the national law of the requested State;
• the requested State does not have jurisdiction over the criminal offence in accordance with national law or jurisdiction on the basis of the rules established in this Regulation.

Furthermore, the requested authority may refuse the transfer of criminal proceedings, in whole or in part, if one or more of the following grounds apply:

• privilege or immunity under the national law of the requested State makes it impossible to take action;
• the requested authority considers that the transfer of criminal proceedings is not in the interests of efficient and proper administration of justice;
• 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;
• the request form established in this Regulation is incomplete or manifestly incorrect and has not been completed or corrected following consultation;
• 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.

d) Procedural Aspects

According to Article 8, the request for the transfer of criminal proceedings shall be drawn up by the requesting authority using the request form set out in this Regulation (Annex I).

Then, according to Article 11, 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 communicate it without undue delay to the requesting authority. Pursuant to Article 13, the requested authority shall communicate to the requesting authority its decision without undue delay and in any event in no longer than 60 days, that may be extended by a maximum of 30 days in exceptional and justified situations.

According to Article 14, during the procedure, the requesting and the requested authority shall consult each other without undue delay to ensure efficient application of the Regulation.

Finally, under Article 18, 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.

3. Effects of the transfer of criminal proceedings

According to Article 21, upon receipt of the reasoned decision to accept the transfer of criminal proceedings, or of the final decision on a legal remedy as established in this Regulation, the criminal proceedings shall be suspended or discontinued in the requesting State in accordance with national law, unless the outcome of the legal remedy is that the case is to revert to the requesting State, or the requesting authority has already suspended or discontinued those criminal proceedings.

However, the criminal proceedings in the requesting State may remain open if certain investigation measures require it, as per the Regulation. Following a decision by the requested authority to accept the transfer of criminal proceedings, the requesting authority and the requested authority shall cooperate, to the greatest extent possible and in accordance with their national law.

Article 22 establishes the effects of the transfer in the requested State. Accordingly, the transferred criminal proceedings shall be governed by the national law of the requested State. Provided that it is not contrary to the fundamental principles of law of the requested State, any act carried out for the purposes of the criminal proceedings or preparatory inquiries performed by competent authorities in the requesting State shall have the same validity in the requested State as if it had been validly performed by competent authorities in the requested State. Also, where in both the requesting State and the requested State, criminal proceedings can only be initiated following a complaint, a complaint brought in the requesting State shall also have validity in the requested State.

Furthermore, evidence transferred by the requesting authority shall not be denied admission in criminal proceedings in the requested State only on the ground that the evidence was gathered in another Member State and may be used in criminal proceedings in the requested State, provided that the admissibility of such evidence is in accordance with the national law of the requested State, including its fundamental principles of law. The power of the trial court to freely assess the evidence shall not be affected by this Regulation.

Lastly, if a custodial sentence or detention order is handed down in the requested State, any period of deprivation of liberty which has occurred in the requesting State in the context of the transferred case shall be deducted from that period. The sentence applicable to the criminal offence shall be that provided for in the national law of the requested State unless that law provides otherwise. In some cases, this Regulation establishes that the sentence imposed in the requested State shall not be more severe than the maximum sentence under the national law of the requesting State.

Finally, we note that a decentralised computer system shall be implemented for communication between States for the purposes of the Regulation, in accordance with Article 25.

For more details on this topic, please contact our team - Tiago da Costa Andrade and Catarina Moreira d'Orey.

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