Dáil Éireann debate -
Tuesday, 11 Jul 2023

Vol. 1041 No. 6

EU Regulation on the Transfer of Proceedings in Criminal Matters: Motion

Minister for Justice (Deputy Helen McEntee)

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Regulation of the European Parliament and of the Council on the transfer of proceedings in criminal matters,

a copy of which was laid before Dáil Éireann on 2nd May, 2023.

I thank the House for facilitating the motion today. Its focus is on improving cross-border co-operation in tackling and solving crime and administering justice. As all present are aware, such co-operation is essential at a time when the criminals we pursue show no regard for borders. This regulation will introduce common rules on the transfer of criminal proceedings, making it easier to transfer them from one member state to another. It will contribute to the efficient and proper administration of criminal justice across Europe and will be particularly effective in tackling organised crime gangs. I welcome the opportunity to address the House on Ireland's opt-in to this new regulation on the transfer of proceedings in criminal matters.

Ireland has an option, provided for in Article 3 of Protocol 21 annexed to the Treaty on the Functioning of the European Union, to opt in to individual proposals in the area of freedom, security and justice. The protocol provides that Ireland has three months from the date a proposal is presented to the Council to notify the Presidency of the Council that it wishes to take part in the negotiation, adoption and application of the measure. The exercise of this opt-in is subject to the approval of both Houses of the Oireachtas, with the three-month period for this proposal ending on 26 July. Ireland can also accept a proposal at any time after it has been adopted, under Article 4 of Protocol 21. In such cases, however, Ireland will not have been in a position to vote on the final content of the proposal. It must also be noted that Ireland made a declaration, appended to the EU treaties, of its intention to opt in to measures in the area of freedom, security and justice to the maximum extent it deems possible.

The Commission published its proposal for a regulation on the transfer of proceedings in criminal matters on 5 April this year. Increasing cross-border crime has led to more cases where several EU member states have jurisdiction to prosecute the same case. For instance, preparation or planning for a crime can be carried out in one member state, the crime itself committed in another member state, the perpetrators arrested in a third member state and the assets derived from the crime transferred to a fourth member state. This is expressly true for crimes perpetrated by organised criminal groups. Without mentioning particular groups, Members can probably think of such scenarios.

Parallel or multiple prosecutions can be inefficient, ineffective and lead to duplication of activities and may also be detrimental to the rights and interests of individuals concerned. Defendants, victims and witnesses may have to be summoned for hearings in several countries. Common rules on the transfer of criminal proceedings are necessary, therefore, to ensure the best-placed member state investigates or prosecutes a criminal offence. This proposal aims to reduce the number of multiple criminal proceedings being conducted in different member states in respect of the same facts or against the same person. This will reduce inefficient use of human and financial resources. Preventing unnecessary parallel criminal proceedings in different member states will also help to protect against infringement of the fundamental principle of criminal law that a person may not be prosecuted or punished twice for the same offence.

The proposal also aims to enable transfers of criminal proceedings where they are in the interest of justice but not currently possible between member states, thus reducing the phenomenon of impunity. For example, situations where a person surrenders under a European arrest warrant but that is refused would come under the proposal.

The proposed regulation requires certain criteria to be present for a transfer of criminal proceedings. Examples of the required criteria include the criminal offence having taken place wholly or partly in the requested state, the suspect or accused being a national of or resident in the requested state, the requested state having refused to surrender the person or, finally, most of the evidence being located in the requested state or the majority of the witnesses residing there.

In order to improve the efficiency of the transfer procedure, the proposal provides for jurisdiction in specific cases to ensure the state requested to take over criminal proceedings has jurisdiction to try the criminal offence for which the transfer is sought. Such jurisdiction can be exercised only upon a request for the transfer of criminal proceedings from another member state which has original jurisdiction to prosecute the criminal offence. It is important to note that this proposal is not intended to impose an obligation on member states to accept a request for the transfer of proceedings and it affords member states a wide range of grounds for refusal.

The proposal also introduces obligations with respect to the rights of suspects and accused persons, as well as victims. Authorities in the requesting state must give due consideration to the legitimate interests of the suspect or accused person and those of the victim and should consult with them on the intended transfer of proceedings, where the conditions allow for it, without undermining the confidentiality of investigation.

The proposal will make digital communications channels the default for all cross-border communication between requesting and requested states, in accordance with the digitalisation regulation. It also provides for consultation among member states and co-operation with Eurojust and the European Judicial Network.

While the transfer of criminal proceedings may be necessary in a number of situations, existing measures at EU level do not regulate this form of co-operation. In the absence of a specific EU legal act, member states currently transfer criminal proceedings between themselves using a variety of legal instruments, with no uniform legal framework across the EU. It is expected that this proposal will reduce the level of fragmentation, provide greater legal certainty and eventually increase the number of successfully transferred criminal proceedings.

The Office of the Attorney General has advised there are no legal impediments or constitutional obstacles to Ireland electing to opt in, participate and be bound by this measure pursuant to Protocol 21. My officials will continue to participate actively in the negotiations at working party meetings and to consult with relevant stakeholders in other bodies and agencies to ensure the final text of the regulation works well for Ireland and the EU as a whole.

Criminal activities continue to evolve and are becoming increasingly cross-border in nature. The proposed regulation on the transfer of criminal proceedings in criminal matters will be a useful tool in responding to the emerging challenges that come from that change. The regulation is likely to save time and resources, prevent unnecessary duplication and avoid impunity in cross-border cases. The Government has no hesitation in commending the motion to the House and I hope I will have the support of colleagues in that regard.

Deputy Pa Daly

As the Minister stated, organised crime is becoming increasingly transnational and this proposal aims to address that development, along with other concerns. It is useful to put on record recent developments in organised crime throughout Europe. In April, Interpol announced its largest firearms trafficking operations, which saw more than 14,000 suspects arrested across Central America and South America and an unprecedented €5.7 billion in illegal narcotics seized. In May, the organisation held its 50th European regional conference, at which its secretary general, Jürgen Stock, commented on these arrests, "Over the last five years, [drug] trafficking and consumption have increased by an order of magnitude, with Europe one of the main transit and destination markets." He further stated, "We continue to see record seizures at European borders and ports, and a corresponding rise in violent crime, corruption and money laundering of unprecedented scale." A 2022 Interpol survey of its members highlighted that money laundering and cybercrime were a major concern. The Interpol Global Crime Trend report stated:

Financial crimes and cybercrime are invariably linked, as a significant amount of financial fraud takes place through digital technologies (making it "cyber-enabled") and cybercriminals also depend on financial fraud to launder their illicit gains. In this way, while "cybercrime-as-a-service" is a well-known criminal concept, the pandemic has also hastened the emergence of "financial crime-as-a-service", including digital money laundering tools that can prove critical for criminals seeking to cash out.

We in Ireland have seen the results of crime and drug trafficking, which have filtered down to every local village. There is an increasing amount of co-operation rather than competition between groups but these actions are still backed by a threat of violence. Although the groups know murder might be bad for business, they still rely on intimidation and gun-running when they need to so do.

The efforts of the EU in this area also deserve to be highlighted. The European Multidisciplinary Platform Against Criminal Threats, EMPACT, had good results in 2022, leading to 9,900 arrests, identification of 4,000 victims of trafficking, the seizure of €180 million and 62 tonnes and the initiation of 9,200 investigations.

Closer to home, serious crime still rears its head. Comparisons with 2020 and 2021 are difficult due to the pandemic but offences such as attempts or threats to murder, assaults, harassments and related offences, damage to property and kidnapping all increased from 2019 to 2022.

There are obvious ongoing investigations and court cases that would not be appropriate to detail here but which are relevant. However, there are other concerns and issues that this proposal addresses beyond just the transnational context. The first relates to the individual human rights of persons. As the Commission itself put it: "Parallel or multiple prosecutions can be inefficient and ineffective, but also possibly detrimental to the rights of individuals concerned as a person may not be prosecuted or punished for the same offence twice. It is a criminal law principle that a person cannot be punished or be subject to several procedures twice." In a lot of criminal law jurisdictions, including our own, the double jeopardy rule is essentially the same. The temptation first and foremost is to look at the punitive aspect of law but courts will strike down laws where they do not circumscribe individual rights in a manner proportionate to their aim.

This proposal addresses other issues that arise in cross-border investigations and trials. Duplicate investigations mean resources can be wasted, and hearings in other countries can see witnesses called in a number of countries. This may increase the risk of the intimidation of witnesses, or maybe even non-engagement. According to the briefing we received, in order to combat this, this proposal is to improve the efficient and proper administration of justice within the EU; to improve the respect of fundamental rights in the process of transfer of criminal proceedings; to improve the efficiency and legal certainty of transfer of criminal proceedings; and to enable the transfer of criminal proceedings where they are in the interest of justice but currently not possible between member states, and reduce the phenomenon of impunity.

I welcome some of the safeguards the Minister mentioned in her opening statement, that it is not proposed to impose an obligation to accept a request for a transfer of proceedings and member states are afforded a wide range of grounds for refusal. It is important these criteria must be met before the transfers are effected. However, we can expect some significant difficulties with implementing these proposals. The transfer of prisoners between countries can be fraught with complexity, which has only recently been addressed after years of legal challenges. It is right and proper we maintain our own system for prosecuting and sentencing, and proposals such as these would have to grapple with that reality. Notwithstanding this, the proposal has merit and Sinn Féin will not be opposing it.

I also note from the Minister's opening statement that there are four elements to the criteria: that the criminal offence must have taken place wholly or partly within the state; that the person is a national or resident of the state; the state has refused to surrender the person; or where most of the evidence is located in the requested state. Overall, I welcome the proposal and will not be objecting to it.

Deputy Peter Fitzpatrick

Most forms of international co-operation in criminal matters, such as exchange of police information, the gathering of evidence, the freezing of assets and extradition, have now been regulated to some extent by European Union legislation. However, one classical form of co-operation has been largely immune from the influence of the EU legislators. This is the area of transfer of proceedings. At present, EU member states currently transfer criminal proceedings between themselves using a variety of different legal instruments, rather than a uniform legal framework. However, increasing cross-border crime due to open borders and in cases of moving across Europe has enabled criminals to be easily active across borders. This has subsequently led to more cases where several member states have jurisdiction to prosecute the same case, with Europol reporting that some 5,000 international organised crime groups were under investigation in the EU in 2017.

Most EU states rely on the 1959 European Convention on Mutual Assistance in Criminal Matters, but under this agreement, transfers are largely unregulated and subject to national laws. A limited number of international instruments have gone a step further to allow a receiving state to assume jurisdiction upon acceptance of the transfer. It is, therefore, critical that we continue to modernise our justice system to ensure it is prepared to respond to current challenges, particularly in an increasingly border-less Europe. Generally speaking, a transfer should be done in the interests of proper administration of justice, as parallel or multiple prosecutions can be inefficient and ineffective, but also discriminatory to the rights of the individuals concerned.

The introduction of this proposal is, therefore, delivering on the goals set in the EU strategy to tackle organised crime, while helping to prevent duplications of proceedings, and avoiding cases of impunity where surrender under a European arrest warrant is refused.

Any European law that touches on the extent of the jurisdiction of national criminal judges will have far-reaching implications from a legal and practical point of view and must be debated. EU criminal justice is increasingly confronted with situations where several member states have jurisdiction to prosecute the same case. On the grounds of effectively combating transnational crime, and preventing human right infringements and the infringement of the fundamental principle of criminal law, that a person may not be prosecuted or punished twice for the same offence, I welcome this proposed legislation. It will ensure that criminal proceedings are conducted in the member state best-placed to deal with them. This will reduce the level of fragmentation, preventing unnecessary parallel criminal proceedings in different states. This will provide greater legal certainty and eventually increase the number of successfully transferred criminal proceedings.

The problematic lack of clear law on the effect of transfers was acknowledged in the previous year, but drilling down and clarifying the criteria and common rules which apply to transfers will result in increased legal certainty by avoiding different interpretations in the member states. This will, therefore, prevent legal fragmentation, improving the administration of justice in line with the EU’s aim of creating a common European area of freedom, security and justice.

These welcome steps will improve efficiency while guaranteeing a common application of laws across the EU through their entry into force at the same time. Overall, I advocate in favour of this regulation as it will prevent duplication of prosecutions and avoid impunity in cross-border cases. Harmonisation in this area will prove an important step to facilitate the proper administration of justice in the common area of freedom, justice and security that the European Union is set to realise.

Minister for Justice (Deputy Helen McEntee)

I thank the House for facilitating the motion and thank both Deputies for their contributions and for supporting it. As I mentioned in my opening remarks, this will introduce common rules on the transfer of proceedings in criminal matters, making it easier to transfer criminal proceedings from one member state to another. As it concerns cross-border procedures, I believe that where uniform rules are required, we are putting forward a proposal for a regulation that is directly applicable in all member states. It is binding in its entirety. It will ensure and guarantee, as the Deputy just said, a common application of the rules across the EU, their entry into force at the same time, and it just means that we avoid different interpretations in member states, thus preventing that legal fragmentation I spoke about.

It is necessary to ensure the best-placed member state investigates or prosecutes a criminal offence. It will prevent duplications of proceedings, will avoid cases of impunity where surrender under a European arrest warrant is refused, will protect the rights of suspects and accused persons and victims and will contribute to the efficient and proper administration of criminal justice across EU member states.

Now that we are opting in to this proposal it will ensure we are at the table with all of our European partners. We can be involved in the detailed discussion on this particular proposal. Opting in under Article 3 allows us to take part fully in the adaptation or the adoption and application of the proposed measures and, indeed, we now have the ability to influence the content of the regulation that is to be agreed. It will ensure we fulfil our declaration where we intend to take part in adopting these kinds of measures to the maximum extent possible. As Minister, I certainly have tried to ensure that where possible, within that timeframe, we are always opting in, and we are always aligned with our colleagues, particularly when it comes to matters of criminal justice where we are obviously working on the same page.

Opting in will safeguard our international reputation. It demonstrates our commitment, ensuring we do not fall out of step with European partners when it comes to issues relating to criminal proceedings and the European area of freedom, security, and justice. For all of these reasons, I commend this motion to the House.

Question put and agreed to.