AGREEMENT BETWEEN THE MEMBER STATESON THE TRANSFER OF PROCEEDINGS IN
CRIMINAL
MATTERS
THE MEMBER STATES,
INVIEW OF the close relationship between their peoples,
NOTINGTHE DESIRABILITY of increased judicial co-operation with
a view to the creation of a European
area without internal frontiers, in which free movement of persons
must be ensured under the Single
European Act,
CONSIDERING the provisions of Article 21 of the European Convention
on mutual assistance in criminal
matters concluded at Strasbourg on 20 April 1959,
CONVINCED THAT, in order to facilitate their application, those
provisions must be supplemented by
more precise rules concerning the transfer of proceedings in
criminal matters which contribute to the
proper administration of justice and a reduction in cases of
conflicting competence,
AWARE THAT the transfer of proceedings in criminal matters must
take account of the interests of the
persons involved, in particular the victims,
BEARING IN MIND the European Convention on the transfer of proceedings
in criminal matters,
concluded at Strasbourg on 15 May 1972,
HAVE AGREED AS FOLLOWS:
ARTICLE 1
1. For the purposes of this Agreement, an "offence" shall mean:
- acts constituting criminal offences;
- acts constituting administrative offences or offences against
regulations, which are punishable by a
fine provided that, if the offence falls within the competence
of an administrative authority. the person
concerned shall have the possibility of bringing the case before
a judicial body.
2. When signing this Agreement or depositing the instrument of
ratification, acceptance or approval
thereof, each Member State may state in a declaration those offences
which it intends to exclude from
the scope of the Agreement. The other Member States may apply
the rule of reciprocity.
ARTICLE 2
Any Member State having competence under its law to prosecute
an offence may send a request for
proceedings to the Member State of which the suspected person
is a national, to the Member State
where the suspected person currently is or to the Member State
in which the suspected person is
ordinarily resident.
ARTICLE 3
1. Proceedings may be taken in the requested State only if the
act underlying the request for
proceedings would be an offence if committed in that State.
2. If the offence has been committed by a person in public service
in the requesting State or against a
person in public service, an institution or property of a public
nature in that State, it shall be treated in
the requested State in the same way as an offence committed by
a person in public service in that
State or against persons, institutions or property corresponding
in the latter State to the subject of
the offence.
ARTICLE 4
For the purpose of applying this Agreement, the requested State
shall have competence to prosecute
under its own law the offences mentioned in the preceding Articles
in respect of which a request for
proceedings has been made.
ARTICLE 5
Member States shall extend their mutual assistance in criminal
matters to include the measures
necessary for the implementation of this Agreement with a view
to obtaining the observations of the
persons involved, in particular the victims.
ARTICLE 6
The requested State shall determine whether action should be taken
on the request and shall inform
the requesting State thereof without delay. For the purposes
of the proceedings the law applicable
shall be that of the requested State.
ARTICLE 7
Where the requested State has accepted the request for proceedings
against the person suspected
of the offence, the requesting State shall discontinue proceedings
against him for the same offence.
However, the requesting State recovers its jurisdiction when
the requested State, which has taken
the decision to terminate the proceedings, informs that State
in accordance with Article 10 that the
decision is not an obstacle to further proceedings according
to its law.
ARTICLE 8
Any act for the purposes of proceedings or preparatory inquiries,
performed in a Member State in
accordance with the provisions which are in force there, or any
act interrupting or suspending the
period of limitation shall have the same force in the other State
as if it had been validly performed in
that State.
Where the law of the requested State alone requires that a complaint
be lodged or another means of
initiating proceedings be employed, these formalities must be
carried out within the time limit laid
down by the law of the requested State and the latter must inform
the requesting State thereof. The
time limit shall begin on the date of acceptance of the request
for proceedings in the requested State.
ARTICLE 9
Where the requesting State indicates its decision to forward a
request for proceedings, the requested
State may apply all the provisional measures, including remand
in custody, whose application would be
permitted by its law if the offence concerning which the proceedings
are requested had been
committed within its territory.
Where the requesting State indicates its decision to forward a
request for proceedings and where the
competence of the requested State is based solely on Article
4, the requested State may apply all the
provisional measures under this Agreement at the request of the
requesting State. Moreover, the
requested State may not remand the suspected person in custody
unless:
a) the laws of the requesting State and of the requested State
authorise remand in custody for the
offence and
b) there are reasons to fear that the suspected person might abscond or interfere with the evidence.
For the purposes of provisional measures, the requesting State
shall submit to the requested State
the necessary documents using any appropriate means of which
there is a written record.
When signing this Agreement or depositing the instrument of ratification,
acceptance or approval
thereof, each Member State may state in a declaration the documents
referred to in the third
paragraph of this Article which it requires for remand in custody
and the time limit within which the
request for proceedings, together with the documents referred
to in Article 12, must be submitted.
ARTICLE 10
The requested State shall inform the requesting State of the discontinuance
of proceedings or of any
decision delivered at the end of the proceedings including whether
that decision presents an obstacle
to further proceedings according to the law of the requested
State. It shall, at the request of the
requesting State, forward a copy of the written decision.
ARTICLE 11
In the requested State, the sanction applicable to the offence
shall be that laid down by the law of
that State unless that law provides otherwise. Where the competence
of the requested State is based
solely on Article 4, the sanction incurred in that State may
not be more severe than the sanction laid
down by the law of the requesting State.
ARTICLE 12
The request for proceedings shall be made in writing and accompanied by:
a) the original or a certified copy of the criminal file, a statement
of the facts of the case and, where
appropriate, any other relevant documents;
b) a copy of the relevant legislation or, where this is not possible, a statement of the relevant law.
The requesting State shall also inform the requested State in
writing of any procedural act performed
or measures taken in the requesting State after the transmission
of the request which have a bearing
on the proceedings. This information shall be accompanied by
any relevant documentation.
ARTICLE 13
The documents to be produced shall be drawn up in the language
or one of the languages of the
requesting State.
Any Member State may, in a declaration, reserve the right to require
that pertinent documents
mentioned in Article 9 or 12 be translated in its language or
one of its official languages. The other
Member States may apply the rule of reciprocity.
ARTICLE 14
1. Requests for proceedings and any relevant communications shall
be exchanged between Ministry of
Justice of the requesting State and Ministry of Justice of the
requested State.
2. By virtue of particular agreements or, in their absence, in
case of emergency, requests and relating
documents may be transmitted directly between the judicial authorities
of the requesting State and
those of the requested State.
3. In case of emergency and by virtue of particular agreements,
requests for proceedings and relating
documents may be transmitted through the international criminal
police organisation (Interpol) or
through any appropriate channels leaving a written record, including
telecopy.
4. As foreseen in paragraphs 2 and 3, a copy of the mentioned
documents will be transmitted to the
Ministry of Justice of the requested State unless this State
has declared that such transmission is not
required.
5. The methods of transmission shall not exclude diplomatic channels.
ARTICLE 15
1. In relations between Member States which are parties to the
European Convention on mutual
assistance in criminal matters, concluded at Strasbourg on 20
April 1959, and the European
Convention on the transfer of proceedings in criminal matters
concluded at Strasbourg on 15 May
1972, the Benelux Treaty on extradition and mutual assistance
in criminal matters, concluded at
Brussels on 27 June 1962 and the Treaty between the Kingdom of
Belgium, the Grand Duchy of
Luxembourg and the Kingdom of the Netherlands on the transfer
of proceedings, concluded at
Brussels on 11 May 1974, this Agreement shall apply only where
it supplements the provisions of
those Conventions or facilitates application of the principles
enshrined therein.
2. This Agreement shall replace the provisions of previous bilateral
agreements governing the same
subjects between two Member States. These Member States may,
however, mutually agree to
maintain in force certain provisions of these bilateral agreements.
ARTICLE 16
1. This Agreement shall be open for signature by the Member States.
It shall be subject to ratification,
acceptance or approval. The instruments of ratification, acceptance
or approval shall be deposited with
the Ministry of Foreign Affairs of the Italian Republic.
2. This Agreement shall enter into force 90 days after the deposit
of the instruments of ratification,
acceptance or approval by all the States which are members of
the European Communities at the date
on which this Agreement is opened for signature.
3. Each Member State may, when depositing its instrument of ratification,
acceptance or approval, or
at any later date until the entry into force of this Agreement,
declare that this Agreement shall apply to
it in its relations with Member States that have made the same
declaration 90 days after the date of
deposit.
4. A Member State that has not made such a declaration may apply
the Agreement with other
Contracting Member States on the basis of bilateral agreements.
5. The Ministry of Foreign Affairs of the Italian Republic shall
notify all the Member States of any
signature, deposit of instruments or declaration.
ARTICLE 17
This Agreement shall be open for accession by any State which
becomes a member of the European
Communities. The instruments of accession shall be deposited
with the Ministry of Foreign Affairs of
the Italian Republic. This Agreement shall enter into force for
any State acceding thereto 90 days after
the deposit of its instrument of accession.
The Ministry of Foreign Affairs of the Italian Republic shall
transmit a certified copy to the Government
of each Member State.
FONTE : http://ue.eu.int/ejn/indexfr.htm