Communication from the Federal Ministry of Foreign Affairs No. 551 / 1992 Coll.
Communication from the Federal Ministry of Foreign Affairs on the negotiation of the European Convention on the Transfer of Criminal Procedure
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Effective from 15.07.1992
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551
COMMUNICATION
Federal Ministry of Foreign Affairs
The Federal Ministry of Foreign Affairs states that a European Convention on the Transfer of Criminal Procedure was negotiated in Strasbourg on 15 May 1972.
On behalf of the Czech and Slovak Federal Republic, the Convention was signed in Strasbourg on 13 February 1992.
The Convention was approved by the Federal Assembly of the Czech and Slovak Federal Republic and ratified by the President of the Czech and Slovak Federal Republic, subject to the condition that the Czech and Slovak Federal Republic does not accept Articles 22 and 23 of the Convention. The instrument of ratification was deposited with the Secretary-General of the Council of Europe, depositary of the Convention on 15 April 1992.
When signing and ratifying the Convention, the following declaration was made at the same time:
Applications referred to in the European Convention for the Transfer of Criminal Procedure must be sent to the General Prosecutor of the Czech and Slovak Federal Republic in criminal proceedings before the prosecution and after the prosecution to the Ministry of Justice of the Czech Republic or the Ministry of Justice of the Slovak Republic.
The Convention entered into force on 30 March 1978 on the basis of Article 38 (2) thereof. It entered into force on 15 July 1992 for the Czech and Slovak Federal Republic in accordance with its Article 38 (3).
The Czech translation of the Convention is being announced simultaneously.
EUROPEAN CONVENTION
ON THE PRESENTATION OF THE PRESENT PROCEDURE
Member States of the Council of Europe, signatories to this Convention,
bearing in mind that the aim of the Council of Europe is to achieve greater unity between its members;
Desiring to add to the work done so far in the field of criminal law in order to achieve fairer and more effective penalties;
DESIRING to this end that it is useful to ensure, in a spirit of mutual trust, the conduct of criminal prosecutions at international level, in particular by eliminating shortcomings arising from conflicts of competence;
agree on the following:
Definitions
For the purposes of this Convention:
(a) "criminal offence" shall include offences under criminal law and offences listed in the legislation listed in Annex III to this Convention, provided that, where an administrative authority deals with such offences, the person concerned must be able to have his case dealt with by a court;
(b) "punishment" means any punishment or other measure imposed for an offence or for an infringement of the legislation listed in Annex III.
Powers
1. For the purposes of implementing this Convention, any Contracting State shall have jurisdiction to prosecute under its criminal law for any offence to which the law of another Contracting State applies.
2. The powers conferred on a Contracting State only on the basis of paragraph 1 of this Article may be exercised only on application by another Contracting State to bring proceedings.
Any Contracting State having jurisdiction to prosecute a particular offence may, in the framework of the implementation of this Convention, refrain from or refrain from prosecuting a suspect who is or will be prosecuted for the same offence by another Contracting State. In the light of Article 21 (2), the decision to refrain from, or refrain from, prosecution shall have an interim character until the final decision in another Contracting State.
The requested State shall not proceed with proceedings based solely on Article 2 if it finds that the right to punish under the law of the requesting State has expired for a reason other than limitation, but in particular in the cases referred to in Articles 10 (c), 11 (f) and (g), 22, 23 and 26.
The provisions of Part III of this Convention shall not restrict the jurisdiction to prosecute the requested State under its law.
PRESENTATION OF THE PROCEDURE
1. Where a person is suspected of committing an offence under the law of a Contracting State, that State may request another Contracting State to initiate proceedings in respect of a matter under the conditions laid down in this Convention.
2. Where, under the provisions of this Convention, a Contracting State may request another Contracting State to initiate proceedings, the competent authorities of the first State shall take this possibility into account.
1. Proceedings may not be initiated in the requested State if the action for which the action is sought would not be a criminal offence if it were committed in its territory and if the offender could not be prosecuted under the law of the requested State in these circumstances.
2. Where the offence has been committed by a public official or against a public official or public institution or whatever is of a public nature in the requesting State, it shall be deemed to have been committed in the requested State by a public official or against a public official or against a public institution or whatever is appropriate in the requested State and against which the act has actually been committed.
1. A Contracting State may request another Contracting State to initiate proceedings in one or more of the following cases:
(a) if the suspect is resident in the requested State;
(b) if the suspect is a citizen of or comes from the requested State;
(c) if the suspect is to exercise or exercise a custodial sentence in the requested State;
(d) if it is brought against a suspect in the requested State for the same or other offence;
(e) if it considers that the transmission of the proceedings is desirable in order to find the truth and in particular where the most important evidence is in the requested State;
(f) if it considers that the execution of the sentence in the requested State, if imposed, would probably contribute to deepening the possibility of resocialising the sentenced person;
(g) where it considers that the presence of a suspect cannot be ensured in proceedings in the requesting State and that its personal participation in proceedings in the requested State may be ensured;
(h) if it considers that it would not be able to ensure the execution of the sentence if it were imposed, even by extradition, and that the requested State may execute it.
2. In cases where the suspect has been convicted of a final judgment in a Contracting State, that State may request the transmission of proceedings in one or more of the matters referred to in paragraph 1 of this Article only if it is unable to execute the judgment itself, even by extradition, and where the other Contracting State does not, in principle, execute foreign judgments or refuse to execute the judgment.
1. The competent authorities of the requested State shall examine the request for initiation made in accordance with the provisions of the previous Articles. The measures they take shall be decided in accordance with their legal order.
2. Where the law of the requested State provides for an administrative authority to punish a criminal offence, that State shall inform the requesting State without delay, unless the requested State has made a declaration pursuant to paragraph 3 of this Article.
3. Any Contracting State may, at the time of signature or deposit of the instrument of ratification or accession or at any later date by a declaration addressed to the Secretary-General of the Council of Europe, lay down the conditions under which its law allows the punishment of certain offences by administrative authorities. This declaration shall replace the information referred to in paragraph 2 of this Article.
The requested State shall not act upon request if:
(a) this application does not comply with the provisions of Articles 6, 1 and 7 (1);
(b) the initiation of proceedings would be contrary to the provisions of Article 35;
(c) the time limit for prosecution in the requesting State under its law would already expire on the date of the request.
The requested State may not refuse, in whole or in part, except in the cases referred to in Article 10, except in one or more of the following cases:
(a) where it is concluded that the reasons on which the application is based are insufficient in accordance with Article 8;
(b) if the suspect is not resident in the requested State;
(c) if the suspect is not a citizen of the requested State and has not been resident on its territory at the time of the offence;
(d) if it considers that the offence for which the proceedings are sought is a criminal offence of a political nature or solely a criminal offence of a military or fiscal nature;
(e) where it has reasonable grounds to believe that the request to initiate proceedings is motivated by grounds relating to race, religion, nationality or political views;
(f) where the criminal offence is subject to its legal order, but at the time of receipt of the request, proceedings under those statute of limitations would be inadmissible; Article 26 (2) shall not apply in such a case;
(g) where its competence is based solely on Article 2 and where, at the time of receipt of the application, the procedure would be inadmissible for the limitation period under these rules; an extension of six months under the conditions of Article 23 shall be taken into account;
(h) where the offence has been committed outside the territory of the requesting State;
(i) if the proceedings would be contrary to the international obligations of the requested State;
(j) if the proceedings would be contrary to the fundamental principles of the rule of law of the requested State;
(k) if the requesting State has infringed the procedural procedures laid down in this Convention.
1. The requested State shall withdraw its acceptance of the request when it has accepted it, and it becomes apparent that there is a reason referred to in Article 10 of this Convention for not taking any measures.
2. The requested State may withdraw its acceptance of the request,
(a) where it appears that the personal participation of a suspected person in proceedings in that State cannot be ensured or where no penalty which could be imposed in that State could be imposed;
(b) if one of the grounds for refusal referred to in Article 11 arises before the prosecution is brought; or
(c) in other cases where the requesting State agrees.
1. All applications referred to in this Convention shall be made in writing. In addition to all the documents necessary for the implementation of this Convention, they shall be sent either by the Ministry of Justice of the Requesting State to the Ministry of Justice of the Requested State or by special arrangement directly to the authorities of the Requested State; they will be returned in the same way.
2. In urgent cases, applications and other documents may be sent through the International Criminal Police Organisation (INTERPOL).
3. Any Contracting State may, by a declaration addressed to the Secretary-General of the Council of Europe, notify its intention to adopt for itself rules of surrender procedures other than those referred to in paragraph 1 of this Article.
If the Contracting State considers that the information provided by another Contracting State is insufficient for the application of this Convention, it shall request the necessary additional information. It may set a time limit for the supply of such information.
1. The request to initiate proceedings shall be accompanied by the original or a certified copy of the criminal file and all other documents required. However, where the suspect is held in custody in accordance with the provisions of Part V and the requesting State is not in a position to transmit such documents at the same time as the request to initiate proceedings, the documents may be sent.
2. The requesting State shall also inform the requested State in writing of all procedural acts and measures in the requesting State which have been adopted following the dispatch of the request and have a bearing on the proceedings. All necessary documents shall be attached to this communication.
1. The requested State shall communicate its decision on its request to the requesting State without delay.
2. The requested State shall also inform the requesting State of the abandonment or the decision taken as a result of the proceedings. A certified copy of each written decision shall be transmitted to the requesting State.
Where the power of the requested State is based solely on Article 2, that State shall inform the suspected person of the request to initiate the procedure in order to enable the requested State to express its opinion on the matter before taking a decision on the request.
1. With the exception referred to in paragraph 2 of this Article, translations of documents relating to the implementation of this Convention shall not be required.
2. Any Contracting State may reserve the right, when signing or depositing its instrument of ratification or acceptance or accession by a declaration addressed to the Secretary-General of the Council of Europe, to require, with the exception of copies of the written decisions referred to in Article 16 (2), that such documents be accompanied by a translation. The other Contracting States will either send translations to the national language of the receiving State or to one of the official languages of the Council of Europe designated by the receiving State. However, the designation of this language is not mandatory. Other Contracting States may rely on reciprocity.
3. This Article shall not affect the provisions concerning translation of applications and annexes contained in agreements and arrangements which are in force or which may be negotiated between two or more Contracting States.
The documents transmitted in the implementation of this Convention need not be verified.
The Contracting Parties shall not require between themselves the costs incurred in implementing this Convention.
1. If the requesting State requests the initiation of proceedings, it may no longer prosecute a suspect for an offence for which the opening of proceedings or enforcement of a judgment previously rendered against him for the same offence in that State has been requested. Until the decision of the requested State on the request to initiate proceedings has been served, the requesting State shall retain the right to take any action relating to the prosecution other than the filing of the indictment or, as the case may be, to authorise the competent administrative authority to take a decision on the matter.
2. The right to prosecute and execute a judgment shall be returned to the requesting State if:
(a) the requested State shall indicate that, pursuant to Article 10, it has decided not to take any action in respect of the request;
(b) the requested State shall indicate that it has decided, pursuant to Article 11, to refuse to accept the request;
(c) inform the requested State that it has withdrawn receipt of the request pursuant to Article 12;
(d) the requested State shall state that it has decided not to initiate or continue proceedings;
(e) withdraw its request before the requested State communicates its decision to take action in respect of the request.
A request to initiate proceedings made pursuant to the provisions of this Title shall extend the time limits for the initiation of proceedings by six months in the requesting State.
Where the jurisdiction of the requested State is based solely on Article 2, the time limits for initiating proceedings shall be extended by six months.
1. If the proceedings in both States depend on a private action, the action brought in the requesting State shall have the same validity as the action brought in the requested State.
2. Where a private action is requested only in the requested State, that State may initiate proceedings without it, provided that the person entitled to bring an action does not object within one month of receipt of the notification from the competent authority that he has the right to object.
Penalties which may be imposed for offences shall be imposed in the requested State as laid down in its law, unless otherwise provided for in those laws. Where the jurisdiction of the requested State is based solely on Article 2, the penalties imposed in that State may not be more stringent than those laid down in the law of the requesting State.
1. Any procedural action taken in the requesting State under its law shall have the same effect in the requested State as if it had been taken by the authorities of that State, provided that its adoption does not give such action greater weight of proof than it has in the requesting State.
2. Any act which breaks the limitation period and which has been validly taken in the requesting State will have the same effect in the requested State and vice versa.
1. When the requesting State notifies its intention to refer a request for initiation of proceedings and if the jurisdiction of the requested State is solely for Article 2, the requested State may, at the request of the requesting State, take the suspect into provisional custody under this Convention if:
(a) the rule of law of the requested State provides for a link to the offence; and
(b) there are reasonable concerns that the suspect will hide or cause evidence to be withheld.
2. The request for pre-detention shall state that an arrest warrant or other order of the same effect has been issued in accordance with the procedure laid down in the law of the requesting State; it shall also indicate the offence for which the opening of proceedings will be requested, when and where the offence was committed, and shall contain as precise a description as possible of the suspected person. It shall also contain a brief description of the circumstances of the case.
3. The request for pre-detention shall be sent directly to the competent authorities of the requested State by mail, telegram or any other means which can be demonstrated in writing or which will be accepted by the requested State. The requesting State shall be informed without delay of the outcome of its request.
Upon receipt of the request to initiate the procedure, supported documents referred to in Article 15 (1), the requested State shall have the power to order all provisional measures, including the taking of the suspect into custody and the seizure of the property which it could order under its own law, should the offence for which the proceedings are sought be committed in its territory.
1. The provisional measures referred to in Articles 27 and 28 shall be governed by the provisions of this Convention and by the laws of the requested State. The laws of that State or of the Convention also regulate the conditions under which the measures will be repealed.
2. These measures shall be repealed in the cases referred to in Article 21 (2).
3. In any event, the person taken into custody shall be released if he or she has been arrested on the basis of Article 27 and the requested State does not receive a request to initiate the procedure within 18 days of the arrest.
4. In any event, the person taken into custody shall be released if he has been arrested on the basis of Article 27 and the documents to be annexed to the request for initiation shall not be given to the requested State within 15 days of receipt of the request for initiation.
5. The duration of the binding imposed solely on the basis of Article 27 shall in no case exceed 40 days.
Concomitant criminal proceedings
1. Any Contracting State which, before commencing or in the course of proceedings for an offence which it does not consider to be political or exclusively military, finds that proceedings are being conducted in another Contracting State against the same person for the same offence shall assess whether it can either suspend or suspend its proceedings or transfer them to another State.
2. If, in view of the circumstances, it does not consider it appropriate to suspend or suspend proceedings, it shall inform the other State in good time, in any event before the judgment in the case is delivered.
1. In the cases referred to in Article 30 (2), the Member States concerned shall, in each case after examining the circumstances referred to in Article 8, decide which of them shall be the only one to proceed with the proceedings. In the course of this consultation process, the Member States concerned shall postpone the judgment in the case without, however, being obliged to extend the postponement by more than 30 days from the dispatch of the communication referred to in Article 30 (2).
2. Paragraph 1 shall not be binding on the State:
(a) who has sent the communication referred to in Article 30 (2) where the main trial has been initiated in the presence of the defendant before the communication is sent;
(b) to whom this communication has been sent if the main trial has been initiated in the presence of the defendant before the adoption of the communication.
In order to establish the truth and to enforce the appropriate penalty, the competent States will examine whether it is appropriate for only one of them to conduct proceedings. If they reach a positive conclusion, they will endeavour to determine which of them it will be, in cases where:
(a) one or several persons should have committed together several offences of fact, which are criminal under the laws of all those States;
(b) a number of persons together should have committed one crime, a crime in accordance with the legal order of all those States.
All decisions taken pursuant to Article 31, paragraph 1 and Article 32 shall have the consequences between the competent States of the transmission of the procedure within the meaning of this Convention. A State which terminates proceedings shall be deemed to have forwarded the proceedings to another State.
The procedure for the transmission of the management referred to in Section 2 of Part III shall be applied if these provisions are compatible with those contained in this Section.
Obstacle of a final decision
1. A person over whom a final and enforceable criminal sentence has been imposed may not be prosecuted or sentenced for the same act or for the same offence, nor may he be punished in another Contracting State unless:
(a) have been acquitted;
(b) Penalty imposed:
(i) has been fully or is being executed; or
(ii) he was wholly or entirely under pardon or amnesty, or
(iii) it can no longer be executed in the light of the limitation period;
(c) the court has found the defendant guilty and has waived the punishment.
2. However, if the Contracting State itself did not request the initiation of proceedings, it will not be obliged to recognise the consequences of a final decision-making case if the act for which the judgment was given was directed against a public official or public institution or whatever is of a public nature in that State, or if the offender himself was a public official in that State.
3. In addition, a Contracting State in whose territory an act has been committed or is deemed to have been committed within its territory under the law of that State shall not be obliged to recognise the consequences of a final decision-making case unless it has itself requested the initiation of proceedings.
If a new procedure is initiated against a person who has been convicted in another Contracting State for the same act, the period during which the restriction of his or her freedom has taken place shall be included in the sentence which may be imposed.
This section shall not prevent the application of broader own legislation on the consequences of a final decision-making case in relation to foreign judgments in criminal matters.
Final provisions
This Convention shall be open for signature to all Member States of the Council of Europe. It shall be subject to ratification or acceptance. The instruments of ratification or acceptance shall be deposited with the Secretary-General of the Council of Europe.
2. The Convention shall enter into force three months after the date of deposit of the third instrument of ratification or acceptance.
3. It shall enter into force three months after the date of deposit of its instrument of ratification or accession in respect of the State which ratified or adopted the Convention.
1. The Committee of Ministers of the Council of Europe may, after the entry into force of this Convention, invite any non-Member State to accede to it on condition that a resolution containing such an invitation is adopted unanimously by all members of the Council who have ratified the Convention.
2. This approach will be implemented by the deposit of an instrument of access with the Secretary-General of the Council of Europe and will become effective three months after the date of deposit.
1. Any Contracting State may, at the time of signature or deposit of its instrument of ratification or acceptance or accession, designate the territory in which or on which this Convention will apply.
2. Any Contracting State may, upon deposit of its instrument of ratification or acceptance or accession, or at any time thereafter by a declaration addressed to the Secretary-General of the Council of Europe, extend this Convention to any other territory designated in this Declaration for whose external relations it is responsible or on whose behalf it is entitled to accept commitments.
3. Any declaration made pursuant to the preceding paragraph may be withdrawn in respect of any territory referred to in that declaration in accordance with the procedures laid down in Article 45 of this Convention.
1. Any Contracting State may, at the time of signature or deposit of its instrument of ratification or acceptance or accession, declare that it exercises the right to make one or more of the reservations set out in Annex I or to make the declaration set out in Annex II to this Convention.
2. Any Contracting State may, in whole or in part, withdraw the reservation or declaration it has made pursuant to the preceding paragraph by a declaration addressed to the Secretary-General of the Council of Europe, which shall take effect on the date of service.
3. A Contracting State which has made a reservation on any provision of this Convention may not rely on the application of this provision in respect of another Contracting State; However, where its reservation is partial or conditional, it may rely on the application of the relevant provision to the extent that it has been accepted.
1. Any Contracting State may at any time, by a declaration addressed to the Secretary-General of the Council of Europe, determine which legislation is to be excluded from Annex III to this Convention.
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Regulation Information
| Citation | Communication from the Federal Ministry of Foreign Affairs No 551 / 1992 Coll., on the negotiation of the European Convention on the Transfer of Criminal Procedure |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 09.12.1992 |
|---|---|
| Effective from | 15.07.1992 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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