Preventing and resolving conflicts of jurisdiction is one of the most important functions of Eurojust, as the Agency is in a privileged position not only to detect parallel proceedings but also to bring together and advise the investigators from involved Member States to make a shared decision on the actions needed, based on the Eurojust guidelines on which State is best placed to prosecute.

Case-law by the Court of Justice of the European Union on the Principle of ne bis in idem in Criminal Matters

Eurojust continues to monitor the relevant case law of the CJEU and offers guidance in the application of the ne bis in idem principle in a transnational context. The latest edition of the case-law report, published in December 2021, contains information on 23 judgments and 4 ongoing cases.

In 2021, Eurojust also examined the national follow-up to written requests of jurisdiction, a tool that had already been in use for several years.

#JusticeDone: Contract killer sentenced to life imprisonment in Hungary with Eurojust’s support

Justice done: In March 2021, the Metropolitan Court of Budapest sentenced a contract killer to life imprisonment for committing two murders in drug-related cases in Amsterdam and Budapest in 2018, and for the illegal possession of a firearm in the Czech Republic. In December 2021, the Appeal Court confirmed this judgment.

Eurojust's Role: The convicted person was arrested in Prague in March 2019 with the help of Eurojust, in a coordinated action by the Hungarian and Czech police authorities.

Eurojust assisted in providing advice and expertise on conflicts of jurisdiction to solve issues relating to multiple EAWs and an International Arrest Warrant from Serbia. The Agency also helped with the execution of corresponding European Investigation Orders (EIOs) to share evidence, including requests for urgent cross-border surveillance. The countries involved came together at Eurojust in a coordination meeting to discuss these matters.

Judicial Tool: Cooperation between the National Desks of Hungary, the Netherlands and the Czech Republic, as well as the Serbian Contact Point, ensured round-the-clock translation and transmission of documents. The guidance from these Desks led to the final transfer of the well-documented domestic Dutch criminal case to the authorities in Hungary, and to the Czech authorities surrendering the suspect for trial in Budapest. Eurojust played an instrumental role in deciding which jurisdiction to prosecute in.

Eurojust written requests on jurisdiction

Eurojust written requests (or recommendations) are issued by National Members to assist national authorities when jurisdictional issues arise between two or more Member States.

The requests usually take the form of joint requests, which are issued jointly by two or more National Members involved in a case (and sometimes by Liaison Prosecutors). With a joint request, the National Members ask their respective competent authorities to accept that one of them is in a better position to undertake an investigation or prosecute specific acts. The conclusion included in the joint request is based on an in-depth assessment of the legal and factual circumstances of the case and is developed in accordance with the Eurojust Guidelines on Jurisdiction.

National authorities can therefore rely on a commonly held opinion of Eurojust supported by a reasoned legal assessment. The authorities may refuse to comply with such requests only if doing so would harm essential national security interests, jeopardise the success of an ongoing investigation or jeopardise the safety of an individual.

Eurojust written requests may concern cases where:

• there are parallel proceedings ongoing in different Member States concerning the same facts and the same suspects, so that their continuation could lead to an infringement of the ne bis in idem principle (conflict of jurisdiction in a strict sense);
• or the offences and suspects investigated in two or more countries are not identical but closely connected and mutually dependent, and a possible concentration of the proceedings in one country would be more effective in the interest of justice.

The requests are either issued at the request of national authorities or on the initiative of the National Members involved, in particular when:

• a document setting out the reasons supporting the decision on which country is best placed to prosecute is considered helpful, or even needed, at the national level;
• the national authorities request the opinion of Eurojust; or
• the national authorities cannot come to an agreement on jurisdictional issues.

Written recommendations on jurisdiction are rarely used; however, according to an analysis performed by Eurojust in 2021, they are overwhelmingly followed by national authorities of the Member States. The report of the results and a short summary leaflet were published in September.

The analysis of Eurojust written requests on which State is best placed to prosecute shows that these requests serve as an effective tool in addressing jurisdictional issues in transnational criminal proceedings, especially to:

• prevent duplication of efforts or risks of infringing the ne bis in idem principle, and to
• ensure a more effective prosecutorial strategy.

Of the 19 written recommendations issued between 2016 and 2019, the national authorities transferred/accepted the transfer of the case, fully in line with the solution suggested by Eurojust, in all cases except one. In most cases, the Eurojust request was mentioned in the national decision to transfer the case, which was later rarely challenged by the parties. When a challenge did arise, it was often dismissed as unfounded by the competent national courts, who were able to rely on the arguments and legal assessment included in the Eurojust request.

Following the issuing of a written request, Eurojust continues to assist national authorities in facilitating the execution of the transfer of proceedings in line with its recommendations, for example by addressing issues regarding the translation of the case file or delays in its concrete transmission, or by receiving a formal reply indicating acceptance of the transfer.

2021 Eurojust recommendation followed in a case of a negative conflict of jurisdiction

Crime: A large-scale online fraud case was detected in Lithuania and Italy. One of the victims was an Italian company that responded to fraudulent emails and transferred more than USD 140 000 to a bank account belonging to the fraudsters in Lithuania.

Judicial issue: Neither Lithuania nor Italy separately collected sufficient evidence to prosecute the case and both authorities had difficulty proceeding. Lithuania seemed merely to be an intermediary in the commission of the fraud, as the only action that took place there was the opening of the bank account.

Eurojust's Role: Lithuania requested that Eurojust issue a recommendation on which country would be best placed to prosecute. Eurojust considered the issues raised by the case, and the Italian and Lithuanian National Members concluded that the criminal proceedings in Lithuania and Italy are parallel proceedings, and that competent Italian authorities would be in a better position to prosecute this case, once the evidence from Lithuania is transferred to Italy.

Prosecution authorities from both countries agreed to follow Eurojust’s recommendation. Lithuania agreed to transfer its proceedings to the competent Italian authorities as soon as possible. Italy agreed to receive the file translated into English. In December 2021, the Prosecutor’s Office of Bologna took over the criminal case.