FAQ - Criminal Justice - European Commission

Is an official notification to pay a fine invalid if the postman puts it into my letterbox during my absence?

The service of judicial documents in criminal matters is a matter which falls within the competence of the Member States. The European Commission is therefore not in a position to assess the validity of the service of a judicial document in criminal matters in a Member State.

Is approximation the same as harmonisation?

Not exactly, although the concepts are very close and are often used interchangeably. While harmonisation suggests an approach to unify the letter of the law in all the EU Member States, approximation allows the national legislators somewhat more latitude, focusing on the end result to be achieved.

How will measures to improve judicial cooperation within the EU affect the rights of its citizens?

An area of justice cannot be created without protecting the rights of individuals. The 1950 European Convention on Human Rights (ECHR), which applies in all EU Member States, already provides a set of rights enjoyed by everyone in the EU. Those rights can be enforced in national courts and, after all national remedies have been exhausted, there remains the possibility to appeal to the European Court of Human Rights in Strasbourg. Some people argue that measures to improve judicial cooperation will harm the rights of those accused of crimes in a Member State other their own. The Commission does not agree. All Member States are bound by the ECHR. Increased judicial cooperation should also in some cases improve the position of those accused of crimes. For example, a court may be more willing to grant pre-trial bail to a person normally living in another Member State if it is sure that, if the person did not surrender themselves for trial, they could forcibly be brought before the court. The EU Charter of Fundamental Rights was solemnly declared at the Nice Summit in December 2000. Although the rights contained in the charter are not enforceable in the courts, they are a moral foundation upon which an area of freedom, security and justice can be built.

In criminal cases, is it possible for different Member States to participate in a joint investigation?

Yes. Two or more Member States may set up a joint investigation team; the composition is to be set out in an agreement between the States concerned. The team would exist for a specific purpose and for a limited period of time. An official from the Member State in which the team is operating would coordinate and lead its activities in the territory of that State.

In criminal cases, how is personal data transfer dealt with?

With regard to personal data, a Member State which has obtained data under the May 2000 Mutual Assistance Convention may only use them for:

• judicial or administrative proceedings covered by the convention and proceedings directly related to them;
• preventing an immediate and serious threat to public security;
• any other purpose, with the prior consent of the communicating Member State or of the data subject.

The communicating Member State may ask the Member State to which the personal data have been transferred to give information on the use made of them.

What if the person for whom extradition is sought is a national of the requested State?

Many Member States, when ratifying international and EU conventions on extradition, have declared that they will not extradite their own nationals, or will only authorise it under certain specified conditions. Such prohibitions on the extradition of nationals have remained in place notwithstanding progress made in simplifying extradition procedures within the European Union. Some Member States' constitutions have prohibited the extradition of nationals. In its proposal for a European arrest warrant, the Commission proposed that exceptions for nationals be abolished. The primary criteria should not be nationality, but the place of residence. Thus, the Commission proposes to facilitate the execution of any sentence in the country of arrest if that is where the person is most likely to be reintegrated into society.

Can a person who has been extradited be tried for other offences which were not stated in the extradition request?

A person who has been extradited may, in respect of (CM) offences committed before his/her surrender other than those upon which the request for extradition was based, be tried for offences that are not punishable by imprisonment (without it being necessary to obtain the consent of the requested Member State). The principle of speciality provides that an extradited person may only be tried for the offence(s) stated in the extradition request. However, if after surrender the extradited person has expressly waived the benefit of the rule of speciality, he/she may be tried for offences punishable by imprisonment.

How will the principle of mutual recognition affect the protection of individual rights?

The Commission considers that legal protection of individual rights (treatment of suspects, rights of the defence, etc.) should not suffer as a result of the application of the principle of mutual recognition. Although the 1950 European Convention on Human Rights already provides guarantees in this field, the Commission is considering whether certain specific aspects of procedural law, such as the circumstances in which legal advice and interpretation are provided, should be further clarified.

Doesn't the principle of mutual recognition contradict the double jeopardy rule?

No. The principle of double jeopardy means that a person cannot be tried twice for the same offence. The principle is enshrined in Article 50 of the EU Charter of Fundamental Rights (PDF File 79 KB). The mutual recognition of a judgment is not a retrial, but simply the acknowledgement that a judgment is valid and enforceable throughout the EU. The principle of mutual recognition should thus strengthen the double jeopardy rule by ensuring that the result of a criminal trial (whether a conviction or an acquittal) anywhere in the EU is recognised by all Member States as blocking any further trial for the same offence. Double jeopardy raises, however, several questions of interpretation, given that it is not defined in the same way by the various international legal instruments which refer to it. The Commission suggests that the principle would become less important if there were a register of ongoing proceedings and final judgments in criminal matters.

How will the principle of mutual recognition affect repeat offenders?

Recognition of a decision taken in a criminal case in another Member State could affect the severity of the sentence. If it happens that a person who committed a crime in one Member State, already had a relevant conviction in another Member State, this might be regarded as an aggravating circumstance warranting a stiffer sentence. Taking into account a previous conviction should not, however, work only to the detriment of the offender. Criminal law in several Member States contains mechanisms to ensure that those convicted of several offences receive sentences that are not simply the sum of the sentences that would have been imposed for each conviction if sentenced individually.

What if a conflict of jurisdiction arises between two Member States?

The Commission has identified two mechanisms which could prevent or settle conflicts of jurisdiction between Member States. One approach would be coordination. On the basis of predetermined priority criteria, conflicting claims to jurisdiction could be settled on a case-by-case basis. Such a task could be entrusted to Eurojust, the Court of Justice or another body. A second approach would be to draw up rules of exclusive jurisdiction within the Union. Such a solution could have the advantage of preventing not only positive conflicts of jurisdiction (where two or more Member States want to judge a particular case) but also negative conflicts (where no Member States wants to judge it). In some cases, however (crimes against national interests, breaches of national security legislation, etc.), Member States might be unwilling to surrender jurisdiction, regardless of where the offences in question were committed. Given the difficulty of establishing special jurisdiction for such questions, an exemption from the principle of mutual recognition might have to be considered.