Fiches Belges

The transfer of criminal proceedings is the measure by which the competent authorities of a State whose jurisdictions are competent to prosecute a crime or an offence ask the authorities of another State, whose jurisdictions are also competent to prosecute the crime or offence, to conduct the prosecution. The requesting State therefore voluntarily transmits to the requested State the task of prosecuting the matter which was initially referred to the requesting State. It is a simple delegation of the prosecution and not a transfer of the competence (jurisdiction) of the judicial authority to which the matter was initially referred. Thus, the judicial authority to which the matter was initially referred does not renounce the exercise of its right to prosecute. It has not relinquished jurisdiction by carrying out a transfer of criminal proceedings. The transfer of criminal proceedings might only be partial, that is to say it might only concern certain defendants or certain facts (offences). It can intervene throughout the entirety of the proceedings: from the commission of the offences to the final judgment, if the sentence has not been served. The transfer of criminal proceedings is a different measure, in its nature and in its effect, from the transfer of documents/evidence, whether that transfer of documents/evidence is made in response to a letter of request from a prosecution service or an investigating judge or whether it is a spontaneous transfer of documents/evidence. The transfer of documents/evidence is intended simply to send to the foreign authority information, which can take the form simply of intelligence or can take the form of evidence. The transfer of criminal proceedings is the formal process, carried out by the public prosecution service, of directing the transfer of the prosecution. The requested State has no obligation to prosecute in respect of the transfer of proceedings and refusal for execution has not to be motivated. It is to be noted that certain grounds for refusal are de facto mandatory for the requested State: - where the acts concerned are not punishable in the requested State ; - when the judicial authorities of the requested State do not have jurisdiction over these acts; - when the "ne bis in idem" principle could be invoked by the person concerned against the requested State.

European Convention on the Transfer of Proceedings of 1972 has not been signed and ratified by France. • European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (art. 21). • The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (art 6.1)

• European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (art. 21): Laying of information in connection with proceedings are transmitted to the Ministry of Justice, Directorate of Criminal Affairs and Pardons. • The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (art 6.1): provides the possibility ofusing direct transmission between the competent authorities (as to know in France: the public prosecutor).

French is advised.

N/A

The competent authority transmits to its foreign counterpart a certified copy of the case papers. The originals of the case papers are retained by the issuing jurisdiction which retains jurisdiction over the case (remains seised of the case). The requesting authority must enclose, with the procedural documents, the evidence which it holds. However, the requesting authority may consider it preferable not to transfer the evidence until it has obtained the assurance of the authorities of the requested Party that they intend to take over the prosecution. It is important to point out that, in respect of requests that are transferred via the Ministry of Justice, the Office of International Mutual Legal Assistance in Criminal Matters ensures a regular follow-up, every four to six months, depending on the country, of transfers of proceedings that have been transmitted and in respect of which most of the conventions provide an obligation to keep the requesting State informed (France, in this case) of the action that has been taken in the foreign State with regard to the transfer of proceedings and to transmit, where applicable, a copy of the decision which has been taken. This is specifically to avoid the possibility of any offenders going unpunished and to enable the requesting State to prosecute the case in France without running the risk of prosecuting a person twice for the same conduct/offences (double jeopardy). The receiving authorities within the requested State must ensure, for their part, that they are equally competent to prosecute and to convict in relation to the facts/offences and the perpetrators. They can then proceed with the prosecution in accordance with their own national rules of criminal law and procedure. They are never bound (required) to commence a prosecution. Throughout the proceedings and then upon completion of the proceedings the authorities of the requested State shall inform the requesting authorities of the outcome of their request so that they will be able to have confirmation that the proceedings have gone ahead and been completed. The Chancellery will transmit to the French prosecution service which carried out the official transfer of criminal proceedings the information thus obtained from the foreign authorities. In the light of this information the French judicial authority, which still has jurisdiction over the proceedings, will consider what course of action to take. The closure of the criminal proceedings that have been commenced in France can only take place, at the earliest, at the moment when the defendant is brought before the court of the foreign State (committed for trial) and at best when the sentence passed in the foreign State has been served completely or the limitation period of that sentence has expired. The grounds for ending the proceedings in France will, in this case, be the ending of the prosecution on the basis of the fact that the matter has been prosecuted in another country. In this way France will have certainty that the offences have not remained unpunished.