Activities of Karolin BRAUNSBERGER-REINHOLD related to 2023/0093(COD)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on the transfer of proceedings in criminal matters
Amendments (54)
Amendment 36 #
Proposal for a regulation
Recital 7
Recital 7
(7) This Regulation should apply to all requests issued within the framework of criminal proceedings. Criminal proceedings is an autonomous concept of Union law interpreted by the Court of Justice of the European Union, notwithstanding the case law of the European Court of Human Rights, starting from the time when persons are informed by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of those proceedings, to be understood as the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal.
Amendment 41 #
Proposal for a regulation
Recital 23
Recital 23
(23) This Regulation shouldall not impose any obligation to request a transfer of criminal proceedings. When assessing whether a request for transfer of criminal proceedings should be issued, the requesting authority shouldall examine whether such a transfer is necessary and appropriate. This assessment shouldall be carried out on a case-by-case basis in order to identify the Member State that is best placed to prosecute the criminal offence in question.
Amendment 46 #
Proposal for a regulation
Recital 29
Recital 29
(29) Suspects or accused persons or victims should have the possibility to requestpropose for the criminal proceedings concerning them to be transferred to another Member State. These requests shouldproposals shall not however impose any obligation on the requesting or requested authority to request or transfer criminal proceedings. If the authorities become aware of parallel criminal proceedings on the basis of a requestproposal of transfer submitted by the suspect or accused person, or the victim, or a lawyer on their behalf, then they are under the obligation to consult each other in accordance with the Framework Decision 2009/948/JHA.
Amendment 49 #
Proposal for a regulation
Recital 30
Recital 30
(30) The requesting authority should inform as soon as possible the suspect or accused person of the intended transfer and should provide for the possibility for such person to express their opinion orally or in writing, in accordance with applicable national law, to enable the authorities to take into accountregister their legitimate interests before issuing a request for transfer. When assessing the legitimate interest of the suspect or accused person to be informed about the intended transfer, the requesting authority should take into account the need to ensure confidentiality of an investigation and the risk of prejudicing criminal proceedings against that person, e.g. whenever it is necessary to safeguard an important public interest, such as in cases where such information could prejudice ongoing covert investigations or seriously harm the national security of the Member State in which the criminal proceedings are instituted. Where the requesting authority cannot locate the suspect or accused person despite its reasonable efforts being made, the obligation to inform such person should apply from the moment these circumstances change.
Amendment 51 #
Proposal for a regulation
Recital 34
Recital 34
(34) The requested State should ensure access to effective legal remedies for suspects and accused persons, as well as for victims, against the decision to accept the transfer of criminal proceedings in line with Article 47 of the Charter and the procedures applicable under national law, whenever their rights are adversely affected in the application of this Regulation. The grounds for refusal in Article 13 may serve as an additional basis for assessment in order to ascertain whether a legal remedy should be pursued. Where discretion is granted under Article 13(2)(b), the competent authority in the requested state should be empowered to verify whether the authority in the requested state has made manifest errors in the exercise of that discretion.
Amendment 53 #
Proposal for a regulation
Recital 34 a (new)
Recital 34 a (new)
(34 a) Member States shall provide that suspects, accused persons and victims have the right of access to the file as well as any other procedural rights which are necessary to effectively exercise their right to an effective remedy. The access to the file shall be limited to the documents related to the transfer of criminal proceedings and in order to exercise their right to an effective remedy.
Amendment 56 #
(39) The requested authority should inform the requesting authority of its reasoned decision on whether to accept the transfer of criminal proceedings without delay and no later than 60 days after the receipt of the request for transfer of criminal proceedings. In specific cases, when it is not feasible for the requested authority to comply with this period, for instance if it considers that additional information is necessary, it may only be extended for further 30 days to avoid excessive delays. In some cases the requested authority might not be known to the requesting authority or the requested authority might not have competence to take a decision under Article 12. Ultimately, the competent authority in the requested Member State shall issue an acknowledgement of receipt of the request.
Amendment 57 #
Proposal for a regulation
Recital 40
Recital 40
(40) Transfer of a criminal proceeding should not be refused on grounds other than those provided for in this Regulation. To be able to accept the transfer of criminal proceedings, prosecution of the facts underlying the criminal proceedings that are subject to the transfer should be possible in the requested State. The requested authority should not accept the transfer of criminal proceedings when the conduct for which transfer is sought is not a criminal offence in the requested State, or when the requested State does not have jurisdiction over that criminal offence, unless it exercises jurisdiction provided under this Regulation. Furthermore, the transfer of criminal proceedings should not be accepted in case of other impediments to prosecution in the requested State. The requested authority shouldall also be able to refuse a transfer of criminal proceedings, if the suspect or accused person benefits from an immunity or privilege in accordance with the law of the requested State, e.g. in relation to certain categories of persons (such as diplomats) or specifically protected relationships (such as lawyer- client privilege), or if the requested authority believes that such transfer is not justified by the interests of efficient and proper administration of justice, for instance because none of the criteria for requesting a transfer of criminal proceedings are met, or if the certificate for a request for transfer is incomplete or was incorrectly completed by the requesting authority, thus not enabling the requested authority to have the necessary information to assess the request for transfer of criminal proceedings.
Amendment 59 #
Proposal for a regulation
Recital 43 a (new)
Recital 43 a (new)
(43 a) Once a transfer of proceedings has been granted and in order to facilitate an efficient process of the transfer the requesting and requested authorities may consult each other to determine the necessary documents or parts of such documents to be forwarded, as well as to be translated, where necessary. However, the decision to only send parts of the documents should be balanced and based on a careful consideration of the documents in question so as to not prejudice the fairness of the proceedings.
Amendment 61 #
Proposal for a regulation
Recital 50
Recital 50
(50) The use of a standardised certificate translated in all official Union languages wouldshall facilitate cooperation and the exchange of information between the requesting and requested authorities, allowing them to take a decision on the request for transfer more quickly and effectively. It also reduces translation costs and contributes to higher quality of requests.
Amendment 64 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Regulation shall apply in all cases of transfer of criminal proceedings in the Union at the latest from the time where a person has been identified as a suspect.
Amendment 67 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘victim’ means a victim as defined in Article 2(1), point (a), of Directive 2012/29/EU, 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 object of criminal proceedings to which this Regulation applies.
Amendment 70 #
Proposal for a regulation
Article 3 – paragraph 1 – point d
Article 3 – paragraph 1 – point d
Amendment 71 #
Proposal for a regulation
Article 3 – paragraph 1 – point e
Article 3 – paragraph 1 – point e
Amendment 72 #
Proposal for a regulation
Article 4
Article 4
Amendment 76 #
Amendment 78 #
Proposal for a regulation
Article 5 – paragraph 2 – point j a (new)
Article 5 – paragraph 2 – point j a (new)
(j a) the consultations of Member States' competent authorities under Framework Decision 2009/958/JHA on the prevention of conflicts of jurisdiction have resulted in an agreement on the concentration of the parallel proceedings in one Member State.
Amendment 80 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
Amendment 84 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Before a request for 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 and ensure that their procedural rights under Union and national law are respected.
Amendment 85 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. Provided that it would not undermine the confidentiality of an investigation, the suspect or accused person shall or otherwise prejudice the investigation, the suspect or accused person, who has already been notified of the accusation, may, in accordance with applicable national law, be informed of the intended transfer of criminal proceedings, in a language which they understand, and shallmay be given an opportunity to state their opinion orally or in writing, unless that person cannot be located despite reasonable efforts being made by the requesting authority. Where the requesting authority considers it necessary in view of the suspect’s or accused person’s age or their physical or mental condition, the opportunity to state their opinion shallmay be given to their legal representative. Where the request for transfer of criminal proceedings follows a request from the suspect or accused person under Article 5(3), such a consultation with the suspect or accused person who made the request is not required.
Amendment 88 #
Proposal for a regulation
Article 6 – paragraph 3
Article 6 – paragraph 3
3. The opinion referred to in paragraph 2 of the suspect or accused person shall be taken into accountregistered by the requesting authority when deciding whether to request the transfer of criminal proceedings.
Amendment 89 #
Proposal for a regulation
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Where the requested authority has taken a decision in accordance with Article 12(1), the requesting authority shall, provided that it would not undermine the confidentiality of an investigation or otherwise prejudice the investigation, immediately inform the suspect or accused person, in a language which they understand, about the issuing of the request for transfer of criminal proceedings and the subsequent acceptance or refusal of the transfer by the requested authority, unless that person cannot be located despite reasonable efforts being made by the requesting authority. If the requested authority has taken a decision to accept the transfer of criminal proceedings, the suspect or accused person shall also be informed about their right to a legal remedy in the requested State, including about the time limits for such a remedy. Where appropriate, the requesting authority may seek the assistance of the requested authority in carrying out this task.
Amendment 93 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Before a request for transfer of criminal proceedings is made, the requesting authority shall, in accordance with applicable national law, and give due consideration to the legitimate interests of the victim and ensure that their rights under Union and national law are respected.
Amendment 95 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Provided that it would not undermine the confidentiality of an investigation, and where the or otherwise prejudice the investigation, victims residesing in the requesting State, they shall who have requested to receive information in accordance with Directive 2012/29/EU, may, in accordance with applicable national law, be informed of the intended transfer of criminal proceedings, in a language which they understand, and shallmay be given an opportunity to state their opinion orally or in writing. Where the requesting authority considers it necessary in view of the victim’s age or his or her physical or mental condition, that opportunity shallmay be given to victim’s legal representative.
Amendment 97 #
Proposal for a regulation
Article 7 – paragraph 3
Article 7 – paragraph 3
3. The opinion referred to in paragraph 2 of the victim shall be taken into accountregistered by the requesting authority when deciding whether to request the transfer of criminal proceedings.
Amendment 98 #
Proposal for a regulation
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Where the requested authority has taken a decision in accordance with Article 12(1), the requesting authority shall, provided that it would not undermine the confidentiality of an investigation or otherwise prejudice the investigation, immediately inform the victim or victims residing in the requesting State, who have requested to receive information in accordance with Directive 2012/29/EU, in a language which they understand, about the issuing of the request for transfer of criminal proceedings and the subsequent acceptance or refusal of the transfer by the requested authority. If the requested authority has accepted the transfer of criminal proceedings, the victim shall also be informed about their right to a legal remedy available in the requested State, including about the time limits for such a remedy. Where appropriate, the requesting authority may seek the assistance of the requested authority in carrying out this task.
Amendment 101 #
Proposal for a regulation
Article 7 – paragraph 4 a (new)
Article 7 – paragraph 4 a (new)
4 a. In exceptional cases, for example due to the high number of victims involved in a case, it should be possible to provide information under paragraph 2 and 4 through the press, through an official website of the competent authority or through a similar communication channel.
Amendment 103 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The right to a legal remedy shall be exercised before a court in the requested State in accordance with its law. The court shall examine the legality of the decision to accept the transfer of criminal proceedings in the light of the relevant articles in this Regulation and, where possible, shall take its decision on the legal remedy within 60 days.
Amendment 107 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. The time limit for seeking a legal remedy shall be no longer than 2014 days from the date of receipt of information about the decision referred to in Article 12(1).
Amendment 108 #
Proposal for a regulation
Article 8 – paragraph 4
Article 8 – paragraph 4
Amendment 110 #
Proposal for a regulation
Article 8 – paragraph 5
Article 8 – paragraph 5
5. The requested authority shall inform the requesting authority about the legal remedies sought under this Article and about their final outcome without undue delay.
Amendment 113 #
Proposal for a regulation
Article 9 – paragraph 8 a (new)
Article 9 – paragraph 8 a (new)
8 a. The competent authority in the requested Member State shall issue an acknowledgement of receipt of the request.
Amendment 117 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
1. The requested authority shall take a reasoned decision on whether to accept the transfer of criminal proceedings and shall decide, in accordance with its national law, what measures to take thereon. It shall inform the requesting authority of its reasoned decision in accordance with the time limits of Article 14.
Amendment 119 #
Proposal for a regulation
Article 12 – paragraph 5
Article 12 – paragraph 5
5. When the requested authority has accepted the transfer of criminal proceedings, and only after the decision on the legal remedy has been taken, the requesting authority shall without delay forward the original or a certified copy of the case file or relevant parts thereof, accompanied by their translation into an official language of the requested State or any other language that the requested State will accept in accordance with Article 30(1), point (c). Where necessary, the requesting and requested authorities may consult each other in order to determine the necessary documents or parts of such documents to be forwarded, as well as to be translated.
Amendment 120 #
Proposal for a regulation
Article 13 – paragraph 1 – point a a (new)
Article 13 – paragraph 1 – point a a (new)
(a a) there is an immunity or a privilege under the law of the requested State which makes it impossible to take action;
Amendment 122 #
Proposal for a regulation
Article 13 – paragraph 2 – point a
Article 13 – paragraph 2 – point a
Amendment 124 #
Proposal for a regulation
Article 13 – paragraph 2 – point d a (new)
Article 13 – paragraph 2 – point d a (new)
(d a) the action underlying the proceedings is not a punishable offence where the action took place and hence there is no jursidiction under the law of the requested state.
Amendment 133 #
Proposal for a regulation
Article 15 – paragraph 2
Article 15 – paragraph 2
2. Consultations mayshall also take place before the request for transfer of criminal proceedings is issued, in particular with a view to determining whether the transfer would serve the interests of efficient and proper administration of justice. In order to propose the transfer of criminal proceedings from the requesting State, the requested authority mayshall also consult with the requesting authority about the possibility of issuing a request for transfer of criminal proceedings.
Amendment 134 #
Proposal for a regulation
Article 15 – paragraph 4
Article 15 – paragraph 4
4. Requests for consultations shall be answered without undue delay.
Amendment 136 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
The requesting and requested authorities may, at any stage of the procedure, request the assistance of Eurojust or the European Judicial Network in accordance with their respective competences. In particular, where appropriate, Eurojust may facilitate consultations referred to in Articles 12(29(7), 12(2) and 12(5), 13(3), 15 and, 17(2) and 19.
Amendment 138 #
Proposal for a regulation
Article 19 – paragraph 1
Article 19 – paragraph 1
1. At the latest upon receipt of the notification of the acceptance by the requested authority of a transfer of criminal proceedings, those criminal proceedings shall be suspended or discontinued in the requesting State in accordance with national law, unless a legal remedy under Article 8 has been invoked with suspensive effect and until such time when the final decision on the legal remedy is taken.
Amendment 139 #
Proposal for a regulation
Article 19 – paragraph 2 – point b
Article 19 – paragraph 2 – point b
(b) maintain necessary investigative or other procedural measures, including measures to prevent the suspect or accused person from absconding, previously adopted that are necessary in order to execute a decision based on Framework Decision 2002/584/JHA or another mutual recognition instrument or a request for mutual legal assistance. These measures may also be maintained if the mutual recognition request has not yet been issued, under the condition that it is likely to be issued without undue delay once the request for transfer has been accepted.
Amendment 140 #
Proposal for a regulation
Article 19 – paragraph 2 – point b a (new)
Article 19 – paragraph 2 – point b a (new)
(b a) coordinate as soon as possible with the requested authority and with the involvement of Eurojust on maintaining provisional measures already taken in the requesting Member State.
Amendment 143 #
Proposal for a regulation
Article 19 – paragraph 3
Article 19 – paragraph 3
3. The requesting authority may continue or reopen criminal proceedings, if the requested authority informs it of its decision to discontinue criminal proceedings related to the facts underlying the request for transfer of criminal proceedings, unless that decision, under the national law of the requested State, definitively bars further prosecution and has been given following a determination of the merits of the case, therefore preventsing further criminal proceedings, in respect of the same acts, in the requested State.
Amendment 147 #
Proposal for a regulation
Article 19 – paragraph 4
Article 19 – paragraph 4
4. Paragraph 3 shall not affect to the right of victims to initiate or to request reopening of criminal proceedings against the suspect or accused person in the requesting State, when the national law of that State so provides, unless the decision by the requested authority to discontinue criminal proceedings, under the national law of the requested State, definitively bars further prosecution and has been given following a determination of the merits of the case, therefore preventing therefore prevents further criminal proceedings, in respect of the same acts, in that State.
Amendment 148 #
Proposal for a regulation
Article 20 – paragraph 2
Article 20 – paragraph 2
2. 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 or any act interrupting or suspending the period of limitation shall have the same validity in the requested State as if it had been validly performed by its own authoritiesonly if such act qualifies as an act interrupting or suspending the period of limitation under national law.
Amendment 151 #
Proposal for a regulation
Article 20 – paragraph 3
Article 20 – paragraph 3
3. Evidence transferred by the requesting authority shall not be denied admission in criminal proceedings in the requested State on the mere ground that the evidence was gathered in another Member State. The evidence gathered in the requesting State may be used in criminal proceedings in the requested State, provided that the admissibility of such evidence is not contrary to the fundamental principles of law of the requested Statefree judicial appraisal of evidence should be maintained.
Amendment 153 #
Proposal for a regulation
Article 20 – paragraph 4
Article 20 – paragraph 4
4. Provided that a custodial sentence or detention order is issued in the requested State, the latter shall deduct all periods of detention spent in the requesting State, which were imposed in the context of the transferred criminal proceedings, from the total period of detention to be served in the requested State as a result of a custodial sentence or detention order being issued. To that end, the requesting authority shall transmit to the requested authority all information concerning the period of detention spent by the suspect or accused person in the requesting State. The competent authority in the requested state may however decide that all or part of the credit shall be omitted if it is not justified in the light of the conduct of the convicted person following the offence.
Amendment 154 #
Proposal for a regulation
Article 20 – paragraph 6
Article 20 – paragraph 6
6. The sentence applicable to the criminal offence shall be the one prescribed by the law of the requested State unless that law provides otherwise. The requested authority may take into consideration, in accordance with the applicable national law, the maximum sentence set out in the law of the requesting State, when the criminal offence has been perpetrated in the territory of the requesting State. Where the jurisdiction is exclusively based on Article 3, the sentence imposed in the requested State shall not be more severe than the maximum sentence set out in the law of the requesting State.
Amendment 156 #
Proposal for a regulation
Article 21 – paragraph 1
Article 21 – paragraph 1
The requestedcompetent authority in the requested Member State shall inform the requesting authority of the discontinuation of criminal proceedings or of any decision delivered at the end of the criminal proceedings, including whether that decision, under the national law of the requested State, definitively bars further prosecution and therefore prevents further criminal proceedings, in respect of the same acts, in that State or of other information of substantial value. It shall forward a copy of the written decision delivered at the end of the criminal proceedings to the requesting authority.
Amendment 157 #
Proposal for a regulation
Article 27 – paragraph 1 – introductory part
Article 27 – paragraph 1 – introductory part
1. Member States shall regularly collect comprehensive sStatistics for the purpose of monitoring the application of this Regulation by the Commission. Authorities shall maintain those statistics and shall shall be collected at regular intervals. Such statistics should be collected through the decentralisend them to the Commission each year. They may process pIT system provided by the Regulation and only if they are available at a central level in the Member State concerned. Personal data necessary for the production of the statistics may be processed. Those statistics shall includare:
Amendment 158 #
Proposal for a regulation
Article 27 – paragraph 1 – point c
Article 27 – paragraph 1 – point c
Amendment 159 #
Proposal for a regulation
Article 27 – paragraph 1 – point e
Article 27 – paragraph 1 – point e
Amendment 160 #
Proposal for a regulation
Article 27 – paragraph 1 – point f
Article 27 – paragraph 1 – point f