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Jurisdiction and Cooperation in Criminal Matters lecture notes week 1 - 7
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Jurisdiction and Cooperation in Criminal Matters tutorial notes week 2 - 6
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Jurisdic(on and coopera(on in criminal ma1ersLecture 1: introduc.on – jurisdic.on and coopera.on in criminal ma6ers as part of interna.onal
criminal law
>>>> Interna.onaliza.on of criminal law:
In principle, the administra.on of criminal jus.ce takes places through na.onal enforcement of
na.onal criminal laws. However, there are increasing cross-border elements, such as cross border
criminality (organized crime, cybercrime), crimes affec.ng a plurality of states, even the interna.onal
community as a whole, suspects abroad, witnesses abroad, other evidence abroad.
- Where is the best place to prosecute? This is a ma6er of jurisdic.on and other considera.ons.
- What degree and forms of coopera.on is required and what are the legal op.ons?
- Post-convic.on: where can the sentence best be enforced?
- How to end/reduce impunity for the most serious interna.onal crimes? Establishment of
interna.onal criminal tribunals and obliga.ons for states to penalize, establish (universal)
jurisdic.on and inves.gate/prosecute.
>>>> Three areas of interna.onal criminal law:
Three branches of interna.onal criminal law can be dis.nguished:
1. Rules of interna.onal law governing the applicability and enforcement of na.onal criminal law
® jurisdic.on.
2. Rules of interna.onal law governing the coopera.on between na.onal criminal jus.ce systems
in criminal ma6ers ® coopera.on in criminal ma6ers.
3. Rules of interna.onal law crea.ng and enforcing criminal law of the interna.onal community
® supra-na.onal criminal law.
Branch 1 – jurisdic.on:
Jurisdic.on governs the applicability and enforcement of na.onal criminal law.
- What is permissible under interna.onal law?
- What is provided for under na.onal law?
There are a number of types of jurisdic.on, namely jurisdic.on to prescribe, jurisdic.on to adjudicate
and jurisdic.on to enforce criminal law.
There are a number of accepted bases for jurisdic.on under interna.onal law:
- Territoriality.
- Ac.ve na.onality.
- Passive na.onality.
- Protec.ve principle.
- Universality principle.
Branch 2 – interna.onal coopera.on:
Why do we have interna.onal coopera.on in criminal ma6ers? Because it is indispensable for the
na.onal administra.on of criminal jus.ce (for example, extradi.on and the collec.on of evidence), to
improve the administra.on of jus.ce (transfer of proceedings) and for humanitarian reasons (transfer
of execu.on of sentences).
1
,There are various coopera.on models/contexts:
- Horizontal/interstate coopera.on.
- Mul.lateral or bilateral coopera.on.
- Coopera.on in special crimes-trea.es.
- Innova.ve coopera.on models (EU).
Which of the possibili.es of coopera.on is applied, depends on the available network of legal
assistance trea.es and/or on poli.cal influence.
à NB: the alterna.ves to coopera.on are discussed in week 5.
Branch 3 – supra-na.onal criminal law:
Supra-na.onal criminal law is criminal law of the interna.onal community.
- The star.ng point of supra-na.onal criminal law is interna'onal crimes.
o There are different types of interna.onal crimes:
• Core crimes.
• Interna.onal crimes under customary interna.onal law.
• Treaty-crimes.
o Part. 3 of the Rome Statute describes the applicability of general principles of
(interna.onal) criminal law.
- Prosecu.on of core crimes by interna.onal criminal tribunals.
- Prosecu.on of core crimes by na.onal courts.
à NOTE: the law/rules on interna.onal criminal procedures is seen as a (new) branch of supra-
interna.onal criminal law with the increasing number of interna.onal criminal tribunals.
>>>> Sources of law for jurisdic.on and coopera.on:
Domes.c law:
- Cons.tu.on.
- Penal Code and Code for Criminal Procedure.
- Special laws (for example, Extradi.on Act).
à NOTE: na.onal law implements interna.onal rules and obliga.ons, but it also serves as
framework/star.ng point for a state shaping interna.onal law.
Interna.onal law:
- Sources: art. 38 ICJ Statute.
- (Bilateral and mul.lateral) coopera.on trea.es.
- Mul.lateral trea.es on special crimes, containing provisions on jurisdic.on and coopera.on.
- Customary interna.onal law.
EU law forms a special category.
à NB: there is also the possibility of conflic.ng sources of interna.onal law (for example, human rights
law).
2
,>>>> Four genera.ons of coopera.on in criminal ma6ers:
First genera.on – extradi'on:
- “Extradi.on” means the delivering up of a person by one state to another as provided by treaty,
conven.on of na.onal legisla.on for the purpose of prosecu.on or enforcement of sentence
(art. 102(b) RS).
Second genera.on – mutual legal assistance:
- This includes other forms of coopera.on than extradi.on.
- Essen.ally collec.on of evidence and service of legal documents.
Third genera.on – transfer of proceedings:
- Where can the case best be prosecuted?
à EXAMPLE: European Conven.on on the Transfer of Proceedings in Criminal Ma6ers (1972).
Fourth genera.on – transfer of execu'on of sentence:
- Coopera.on serving, in part, a humanitarian purpose essen.ally.
- Comes aher convic.on, so there is less need for confidence in the foreign criminal jus.ce
system.
à EXAMPLE: European Conven.on on the Transfer of Sentenced Persons (1983).
>>>> Different criminal jus.ce systems and different views of (ideal) coopera.on:
Adversarial (anglo-saxon) systems:
- No trials in absen.a.
à NB: this underlines the importance of extradi.on.
- Importance of live tes.mony in front of a jury.
à NB: this underlines the importance of facilita.ng the appearance of witnesses.
- Collec.on of evidence by par.es, including the defense.
à NB: this underlines the importance of allowing the defense to look for evidence abroad.
Inquisitorial (con.nental Europe) systems:
- Possibility of trials in absen.a.
à NB: this means trials can move forward without extradi.on.
- No great need for live tes.mony in courts (as rogatory commissions can be used for collec.ng
evidence).
- Collec.on of evidence is reserved for state-authori.es.
3
, Lecture 2: the interna.onal law of jurisdic.on in rela.on to interna.onal and transna.onal crimes
>>>> The concept of jurisdic.on under interna.onal law:
Relevance of jurisdic.on and principles:
Jurisdic.onal principles are enshrined in domes.c criminal codes, suppression conven.ons aiming to
combat transna.onal organized crime and mul.lateral conven.ons ins.tu.ng a system of
suprana.onal criminal law enforcement (e.g. the Rome Statute).
The future of interna.onal criminal law is domes.c. This makes it essen.al to understand the content,
scope, relevance, and legi.macy of jurisdic.onal principles to enforce interna.onal criminal law
domes.cally. To give states the competence to inves.gate and prosecute crimes, these principles
discussed today are important.
The rise of transna.onal criminality, by their very nature cross-border, generates significant interest of
states in principles allowing it to suppress transna.onal organized crime.
The concept of jurisdic.on under interna.onal law:
Interna.onal law seeks to maintain interna.onal order by compartmentalizing territory and individuals
into sovereign states. Jurisdic.on is one of the aspects of sovereignty, next to for example the power
of states to regulate the entry of persons into a state’s territory.
- Under interna.onal law, jurisdic.on relates to the authority of a state to exert its influence and
power. So, jurisdic.on gives states the regulatory power to make the law, enforce it and apply
it on its own territory to people and property.
- In prac.ce, jurisdic.on manifests itself under three independent and dis.nc.ve forms of
jurisdic.on, namely: (1) the jurisdic'on to prescribe (to make law and criminalize conduct); (2)
the jurisdic'on to adjudicate (to apply law); and (3) the jurisdic'on to enforce (to physically
ensure compliance with the law, exercising all the usual range of police, prosecutorial, judicial
and related execu.ve power in rela.on to criminal jus.ce).
o Both the jurisdic.on to prescribe and the jurisdic.on to enforce were already ar.culated
by the PCIJ in PCIJ Lotus.
• What are the facts of the case?
A French vessel collided with a Turkish ship in Greek territorial waters and the ques.on
was whether Turkey could apply its laws to an incident outside its territory. Turkey did
not have the right to try the French captain, because the acts occurred outside Turkish
territory, according to France. However, the PCIJ disagreed.
• What did the PCIJ decide on the jurisdic6on to enforce?
“Now the first and foremost restric.on imposed by interna.onal law upon a state is
that — failing the existence of a permissive rule to the contrary — it may not exercise
its power in any form in the territory of another state. In this sense jurisdic.on is
certainly territorial; it cannot be exercised by a state outside its territory except by
virtue of a permissive rule derived from interna.onal custom or from a conven.on.”
à CONCLUSION: the jurisdic.on to enforce is strictly territorial, but it can be mi.gated
through a state’s consent and mutual legal assistance and extradi.on agreements.
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