Bucharest UNIVERSITYBucharest UNIVERSITY

LAW SCHOOLLAW SCHOOL

Scientific coordinator

Professor dr. Constantin MITRACHE

PhD Candidate Mariana ZAINEA (RADU)

Sesiunea 2013

DOCTORAL THESIS

NATIONAL CRIMINAL JURISDICTION IN THE CONTEXT OF

INTERNATIONAL COOPERATION

- Summary -

1. The objective of the scientific research

It is well know the fact that in the process of international relations, space is not a static

but a dynamic and complex notion. The territory represents that geographic space within those

limits the state, main actor of these relations, is exercising its exclusive and complete sovereignty.

This statement, although very simple, shows that, on the one hand, at least at a theoretical level,

upon a territory it cannot be exercised but the sovereignty of a single state, and on the other hand,

that state is the only one competent to determine the nature of competences that can be exercised

through its authorities and institutions.

Despite that, today borders are not only some territorial delimitations. They are drawing

true political spaces of sovereignty in which the state is exercising its authority in accordance

with the changes brought by is interaction with other international actors, on a bilateral level or in

the framework of international or regional organizations. Referring to political spaces of

sovereignty is not a random one. On the one hand, a direct relation between space and politics has

existed ever since the state civilization appeared; from the moment organized human structures

have become aware of their own identity and made the distinction between US and the OTHERS.

On the other hand, criminal policy has been an important component of the general policy of

every state which followed always the line of the criminality trends even beyond its frontiers, and

it this particular context has established the field of application of its criminal jurisdiction.

Jurisdiction is the central and vital element of a state sovereginity, which even though it is

strongly interconnected with the territory of the afore-mentioned state ir is not exclusively

connected to that state. This is due to the fact that the states'' conduct shall be always dependent ,

in a more or less obvious manner, to the preoccupation to exercise its jurisdiction, especially the

criminal jurisdiction, not only as regards what is happening within its frontiers, but also beyond

those frontiers

Even though the concept of jurisdiction is specific for international public law, context in

which it evoked the notion of power, or from a conventional perspective, of power, we believe

that the national criminal law is not far from this concept, the analysis of the two branches of law,

especially of the influence more and more evident exercised upon the national law of the

international relations and international public law, being able to prove to the best extent this

aspect.

We do not wish to discuss here the history of the legal concept of jurisdiction and nor

shall we make an analysis from the perspective of the three powers through which state

jurisdiction is exercised: legislative, executive and judicial. Suffice it to say that criminal

jurisdiction is a concept to be found in the criminal law, including Criminal Code and the new

Criminal Code (in the context of immunity of jurisdiction) and that it presents a special interest

for the field of international judicial cooperation in criminal matters, where its dynamics can be

best observed.

From the perspective of our scientific undertaking the expression national criminal

jurisdiction entails the application o the criminal law in space on the bases o f the territoriality,

personality, reality and universality principles. Approaching this theme is not mere theoretical,

the research having as an objective not only the analysis of the domestic and international

framework applicable in the field, EU framework included, but also of the tendencies this

principles have in the context of international cooperation, comprising operational cooperation, in

criminal matters, as well as of the necessity to put into practice those principles based also on the

evolution of international law at a certain point in time.

These principles allowed us to approach this theme on two jurisdiction categories. The

first one is the one defined by the territorial criminal jurisdiction. The territoriality principle is the

one that puts the basis as regards the application of the criminal domestic law , firstly from the

perspective of exclusive sovereignty on the own territory, and secondly, from the perspective of

the administration of the evidences.

Starting from the fact that the relation between the criminal law and the location where

the offence occurred is best emphasized in the context of translational organized crime, we have

appreciated as useful, from a practical and theoretical point of view, the analysis of the two

concepts of territoriality: subjective and objective territoriality, as well as the theories connected

to territoriality which gave birth into practice to different controversies. The second category is

represented by the extraterritorial criminal jurisdiction.

Secondly, bearing in mind the international cooperation in the fight against crime, the

national criminal jurisdiction means, in the context of our scientific undertaking, the application

of the criminal national law as an effect of international cooperation on the basis of the principle

aut dedere aut judecare and of the taking over of procedures initiated by another state. This has

been defined and analyzed as secondary jurisdiction.

The novelty of the scientific research is determined by the necessity to evaluate the

domestic internal framework for the application of the criminal law in space in the context and

from the perspective of international cooperation. It is indeed true that the doctrine has already

pronounced itself upon the relations between the criminal law and the space. Despite that, the

approach until now was a classical one, the process of establishing and effectively applying the

criminal law into space, simple at a first glance, being in our opinion, still an equation with

unknown elements in the national law.

The caseload existing in national criminal cases where the criminal law is applied based

on the principles of reality, personality and universality or even territoriality and those of

international cooperation in criminal matters, is one of the arguments that stays at the basis of

such a statement. A second argument is given by the lack of an effective criminal law strategy

that would correspond to the present day problems of the political and legal Romania space or

that would be centred on predictive values or legal patterns.

The necessity of the evaluation before mentioned starts from current legal realities and

comes as an answer for those who have to establish who has the right to starts the criminal

investigation for a certain offence, which criminal law is applied in that case, which are the rights

the accused person will have during the criminal trial or which case the national case or the case

belonging to the Soliciting State will have priority. This is the reason for which the scientific

research has two components: a theoretical-documentary and a practical one.

In this context, the thesis has as an aim to bring a significant contribution in the field of

scientific research., with an inter-disciplinary component, from the criminal law, criminal

procedural law and public international law. The interdependence and interaction between those

fields, as well as approaching the theme also from the perspective of the treaties, considered as

sources of the national criminal law have imposed such an exigency1,

2. Structure of the thesis

The thesis is structured in titles, chapters, sections, subsections and paragraphs.

Title I ”Territorial criminal jurisdiction” is formed of two chapters. Chapter I entitled

”The dimension of the criminal law territoriality” is structured in three sections: ”Justification of

the territoriality of criminal law”, ” The concept of territoriality from the perspective of

Romanian criminal law. The ubiquity theory” and the Subsidiary character of the territoriality of

criminal law from the perspective of the New Criminal Code. The de-teritorialization of the

national criminal law?”. In this chapter there have been analyzed from a comparative and

critical approach the relevant provisions from the Criminal Code and the New Criminal Code.

As a matter of fact the approaching date for entering into force of the New Criminal Code,

February 1, 2014, has determined the analysis of the whole national system for the application of

the criminal law in space to be done also from the perspective of the New Criminal Code. At the

1 Constantin Mitrache, Cristian Mitrache, Drept penal român. Partea generală, Ediția a IX-a revăzută și adăugită, Universul Juridic, 2012, p. 55.

same time, it was taken into account and evoked the foreign jurisprudence, especially that of the

United States and of the International Court of Justice.

Chapter II entitled” Redefining the principle of territoriality in the context of international

cooperation. Exceptions” is dedicated to the analysis of the diplomatic immunities of criminal

jurisdiction and the legal framework for the foreign armed forces.

Even though the sphere of criminal jurisdiction immunities is much broader, including,

for example those related to heads of states and government, our research has limited itself to the

diplomatic immunity. The reason is connected mainly to the fact that our exercise follows the

lines and structure of the principles for the application of the criminal law in space in the form

and content regulated by the Criminal law into force and the New Criminal Code. And, at the

same time, is connected to the fact that the state immunity.2 is a concept profoundly attached to

the private public international law and international relations.,

The legal framework for foreign armed forces has been analyzed exclusively from the

perspective of the application of the criminal law in space, bearing in mind the legislation into

force at that time in Romania3, which was lacking and did not have a practical outcome, as well

as the bilateral and multilateral framework applicable to Romania. Of course the stationing at this

moment on the Romanian territory, of the American armed forced, has led to the presentation of

some detailed elements and to the analysis from a concrete, critical and compared perspective of

this issue, while sending to the international framework and to the military legislation of the

United States of America.

Even if in the specialized literature immunity of the heads of state and government has

been looked upon as a form of diplomatic immunity4 we are of the opinion that the heads of state

and governments do not benefit of immunity in their quality of diplomats, but in their quality of

representatives of sovereign states. Such an immunity comes from international conventions,

2 This concept has at the basis the principle par parem non habet imperiu. Currently there are two theories, the one of absolute immunity which is the logical consequence of the principle mentioned above and the second of the relative immunity which tends to predominate According to the latter theory, the state enjoys immunity for the acts iure imperii, but not for act iure gestionis, that is only if it is acting in the same way as an individual in relations of private law. This divergence determines difficulties in the international relations. 3 Legea nr. 291 din 2 noiembrie 2007 privind intrarea, staţionarea, desfăşurarea de operaţiuni sau tranzitul forţelor armate străine pe teritoriul României, publicată în Monitorul Oficial nr. 758 din 8 noiembrie 2007.4 Traian Dima, Drept penal. Partea generală. Ediţia a II-a, revăzută şi adăugită în baza Legii nr. 278/2006 de modificare a Codului penal, Editura Hamangiu, 2007, p. 93.

being a consequence of the effects of external sovereignty recognized to all states. . According to

the international law, heads of states are enjoying immunity from criminal jurisdiction when they

are on the territory of another state, the same rule being applied to the persons accompanying

them. As regards the heads of governments, the specialized literature showed that they enjoy, on

the territory of other states, all the rights and immunities specific for diplomatic representatives5.

The institution of the European Prosecutor Office, announced by the Lisbon Treaty and

debated in the framework of numerous conferences and seminars and recently launched under the

EU legislative process6U, has also a dedicated space in our research. Even though the Proposal for

the EPPO Regulation is susceptible of many comments and approaches, our exercise is limited

exclusively to those aspects related to territorial and material jurisdiction of the European

Prosecutor Office, as all as to the concept of legal space which is to be found in the Proposal for

a Regulation. Even though this concept does not say too much for the domestic criminal law, at

least at this stage, having more meanings of a constitutional and public international law nature,

it is not randomly we wished to emphasize this aspect. The intention was to underline the small

but clear steps towards a federal structure of the EU.

Title II-Extraterritorial jurisdiction is split into three chapters. The first chapter offers

short considerations on the “Influence of international public law on the domestic criminal law”.

The second chapter-”The extraterritorial jurisdiction: principles of application of the

criminal law in space. Implications and perspectives” is dedicated to the analysis, from the

perspective of the Criminal Code and the new Criminal Code, of the principles of personality,

reality and universality of the criminal law, as concerns the latter being interested in the universal

jurisdiction of states and not of the over-national courts (jurisdictions)

5 Gheorghe Antoniu (coordonator), Constantin Mitrache, Rodica Mihaela Stănoiu, Ioan Molnar, Viorel Paşca, Avram Filipaş, Iosif Ionescu, Nicoleta Iliescu, Matei Basarab, Noul Cod penal, Volumul I, Editura C.H.Beck, 2006, p.128.6 Document accessible at http://ec.europa.eu/justice/criminal/judicial-cooperation/public-prosecutor/index_en.htm.

The analysis of the principles mentioned before was undertaken not only from the aspect

of their justification and their conditions of application, but also from the perspective of

international cooperation in criminal matters. The relation between the criminal law and the

international conventions is also analyzed.

In this context, the thesis offers an inventory of the obligations stipulated by the treaties

and of the effects emerging from breaching those treaties, as well as some considerations with

regard to their impact on the domestic criminal law.

.The third chapter” Conflicts of jurisdiction and the principle ne bis in idem” is dealing

with a theme in fashion, strictly connected with the application of the criminal law in space, a

theme very much present in the caseload of the judicial authorities, especially of those dealing

with offences having a transnational component.

In general, both at national and international level, the legislative and institutional efforts

to control conflicts of jurisdiction, justified by the necessity of having a rational administration of

the criminal justice system, have ended in bringing to life a modest international framework

which lacks, at least at this moment, a pragmatic finality. In the EU context, this is translated

through the absence of an institutional and decision making power able to solve those conflicts.

The attempt to entrust EUROJUST with such a power has failed in 2009 when its legislative

framework has been reformed, as it shall fail in the context of the Proposal for Eurojust

Regulation launched by the European Commission in order to reform it.

The reason is connected to the lack of interest to promote uniform and clear rules to

coordinate actions, justified somehow also by the lack of trust in the legal systems of some of the

Member-States or by the existence in those Member-States of a criminal sanction system that

instead of preventing crime is justifying it.

“This is happening for a variety of reasons. One of them is that the field of justice is

among the most conservative in each country and this conservative spirit is reflected in the way

the Council is regulating. Another very important reason is the level of protection which the

States had always and the fact they are not anxious to transfer their criminal investigation powers

towards an European Agency. We are therefore standing in front of a paradox: while the

European Parliament is ready to fight against transborder crime, including through offering

extended competence to Eurojust and Europol, underlying the cooperation. [ …] Member/-States

are making some affirmations but are drafting laws in a manner somehow contradictory.7”

At the same time, as it was shown in the specialized literature, re-thinking the criminal

law and re-evaluating the criminal law sanctions represents a request of maximum interest,

because the offence, the criminal liability and the criminal law sanctions are institutions which, at

different time intervals are undertaking changes as regards their own substance8. Looking from a

practical perspective, we can say that this interest is somehow best felt in the context of

international judicial cooperation.

Globalization of the criminal justice systems and the migration of the criminal

phenomenon are contributing to a growing risk as regards the existence of criminal proceedings

or multiple convictions towards the same person, as regards the same deed. Ne bis in idem is

without a doubt a principle known by the whole legal systems, but only as regard it application at

a national level, not only in an inter-statal or more broader international context. There needs to

be underlined from the very beginning the fact there is at this moment, no rule of international

public law, which would institute the obligation of the states to follow between themselves the

principle ne bis in idem. This has been recently noticed also in the foreign specialized literature9.

7 Prezentare asupra perspectivelor Agenției europene însărcinate cu cooperarea judiciară în cadrul UE, Renate Weber - raportor al Parlamentului European privind viitorul Eurojust, 5 octombrie 2010, Informare de presă accesibilă la www.renateweber.eu/mediafiles/RW_-_Viitorul_Eurojust.pdf. 8 Ştefan Daneş, Reforma legislaţiei penale în domeniul sancţiunilor de drept penal şi regimul juridic al măsurilor luate pe timpul executării pedepselor fără privare de libertate, în revista Dreptul nr. 4/2002, p. 116.9 Ne Bis In Idem: Towards a Transnational Constitutional Principle in the EU?, John A.E. Vervaele, Utrecht Law Review, Volumul 9, Septembrie 2013, accesibil la http://www.utrechtlawreview.org

The application of the principle ne bis in idem is strictly conventional and depends to a great

extent on the content of the treaty applicable (treaty on the rights and fundamental freedoms,

treaties referring to international criminal tribunals and treaties referring to international

cooperation in criminal matters) which determines in practice to exist many controversies on the

margin of this subject.

It has to be shown also , that our analysis was undertaken in the context of the universality

of the criminal law, as well as of the conflicts of jurisdiction from the perspective of the internal

framework applicable in the field of international cooperation, as well as of the one existing at

EU and Council of Europe level. The jurisprudence of the European Court of Justice has been

also taken into account and briefly presented. We have mentioned this because in the regulation

of the Criminal Code, the principle of the universality of the Romanian criminal law involves

discussions also from the perspective of its relation with the non bis in idem principle.

Title III ”jurisdiction through representation and the international cooperation in criminal

matters” is formed of two chapters ”Jurisdiction aut dedere, aut prosequi” and “Transfer of

criminal proceedings” both themes being approached from a double perspective: national and

international.

As a preliminary observation, we show that secondary jurisdiction is that jurisdiction

exercised by a state at the request of the state that has primary jurisdiction. In the specialized

literature there have been identified two forms of secondary jurisdiction: aut dedere, aut prosequi,

in connection with the extradition or surrender based on European Arrest Warrants, but in this

context only of the foreign nationals or without nationality and the transfer of criminal

proceedings.

In this context, in order to establish the efficiency of a system based on aut dedere, aut

prosequi, which is more and more invoked in the context of international cooperation, even

between EU Member-states, there have been analyzed the following aspects: character, reason

and purpose of the application of this principle in the public international law, as well as whether

it exists or not an hierarchy between the two alternatives.

As regards the second form of secondary jurisdiction, it must be showed that not always

behind a transfer of criminal proceedings stays a conflict of jurisdiction. Even though in the

specialized literature the tendency is to consider the transfer of criminal proceedings as one of the

means to solve conflicts of jurisdiction, we believe this is justified firstly through the necessity to

ensure an effective administration of the criminal justice which makes it possible for it to become

applicable independently from a conflict of jurisdiction. As a form of secondary jurisdiction, it is

though dependent on the existence of a request for transfer of proceedings formulated by the state

that has primary jurisdiction. Even more than that, it is necessary for the request to be formulated

by a state that has primary jurisdiction, territorial or extraterritorial, and at the same time, for the

criminal investigation to be initiated or continued on the basis of such a request.

\In the context of our scientific exercise there have been analyzed both forms of the

transfer of proceedings: denunciation official and the transfer of procedures already initiated,

while bearing in mind the provisions of two multilateral treaties, the more often invoked into

practice: Art. 21 of the Council of Europe Convention on Mutual Legal Assistance adopted in

Strasbourg on 20.04.195910 and the European Convention on the Transfer of Proceedings.

adopted in Strasbourg on 15.05. 197211 but also from the perspective of the national law in the

field, Law nr. 302/2004 on international cooperation in criminal matters, with the subsequent

changes and completions.

10 Ratified by Romania through Law no. 236 dated December 9, 1998, published în theh Official Gazette of Romania, Part I, no. 492 dated December 21 1998, modified through Government Emergency Ordinance no dated June 11, 1999, published in the Official Gazette of Romania , Part I, no. 270 dated June 11 1999.11 Ratified by Romania through Government Emergency Ordinance no. 77 dated August 30, 1999 for the ratification of the European Convention on the transfer of criminal proceedings, adopted in Strasbourg on May 15, 1972, published in the Official Gazette of Romania, Part I, no. 420 dated August 31, 1999, approved through Law no. 34/2000, published in the Official Gazette no. 158 dated April 17, 2000.

The approach has been done exclusively from the perspective of the transfer of criminal

proceedings that aims the administration of justice and corresponds to the requirements of

predictability and legal certainty, being analyzed, the conditions that need to be fulfilled, whether

formal or substantial, as well as the effects caused.

As regards the effects of the transfer of criminal proceedings, it is important to know the

fact they are operation towards the authorities of the all the involved countries and that they can

be, depending on the moment they are emanating, temporary and final.

Both Law 3022004 as well as the new Criminal Code are regulating in an unitary form

these situations, the latter one sending to the special law not only in the context of non-exercising

of the criminal investigation as a consequence of the transfer of proceedings towards another

state but also as a posteriori put into motion of the criminal investigation (Art. 16 of the New

Criminal Code).

Another important form of international cooperation taken into account and analyzed in

the context of our scientific exercise is that related to the spontaneous exchange of information,

as a form of judicial cooperation, different from the exchange of information that takes place, at

the request of one of the parties or from the automatic exchange of information. The fact that we

refer to the judicial nature of the spontaneous exchange of information as a form of cooperation

was not made by chance, but comes from the necessity to make a distinction between this type of

cooperation and the one that takes place through police channels or through intelligence channels,

with the purpose to undertake criminal investigations or to collect operational data on criminal

matters12.

For our research it was taken into account the spontaneous exchange of

information(without prior request) which was obtained during criminal proceedings and which

12 As it is the one done, for example, in the context of the Framework-Decision 2006/960/JHA of the Council of 18 December 2006 on simplifying the exchange information and intelligence between law enforcement authorities of the Member-States of the European Union

are believed by the authority transmitting them as having the ability to lead to the initiation by

another state of criminal proceedings or the continuation of criminal proceedings.

Into practice the advantage and disadvantage of this form of cooperation are best reflected

in the context of money-laundering offences and those having a transnational character.

The connection between the spontaneous exchange of information and the multiple

parallel criminal investigations and the transfer of criminal proceedings, is not an ideological

subject, but a practical one, which can lead to multiple criminal law proceedings and in cases

there is no coordination, to the positive conflicts of jurisdiction.

3. Conclusions

International cooperation remains an important component and same time a priority

of the institutional and legislative activities undertaken by the European Union, Council of

Europe and the United Nations, a proof in this sense being the numerous legal instruments

adopted until the present day, a great part of them being evoked in the framework of the

present thesis.

The major interest for the practical side of international cooperation, but especially

for the support of the judicial authorities in the communication, cooperation and

coordination process for the application of these legal instruments, is showed firstly through

the creation and regulation at a treaty level-The Lisbon Treaty-off some institutions and

bodies, such as the European Judicial Network, Eurojust, Europol, and for the future, the

European Prosecutor 's Office.

In this particular context, the field of the application of criminal law into space has

become a complex one, which justifies its study not only from the perspective of substantial

law provisions, but also from the perspective of its direct connection with the international

cooperation.

At the same time, even though it might not be that evident, we are in a continuous

process of institutional and legislative re-construction, and at the same time of reforming

our national system. At the same time, the criminal international law and the law of the

European Union are influencing profoundly the criminal national law and through that bring

into prime time a new legal culture.

4. Summary of the de lege ferenda proposals

- Modification and completion of Law no. 286 regarding the Criminal Code of Romania

modifying Art. 12 ”Criminal law and international treaties” as regards the elimination of

Art. 8 ” Territoriality of criminal law”;

elimination of Art. 14, , considering that the reason for having in the Criminal Code of

Romania some provisions as regards extradition is no longer sustained, not even at the level of

principle, taking into account the fact that the existence of such norms is ensured through Art. 19

of the Romanian Constitution and through Law no. 302/2004 on international judicial

cooperation in criminal matter with its subsequent modifications and changes. Through this law

there are established the conditions for extradition to and from Romania and which stipulates the

pre-eminence of the international law in the sense that it is applied on the bases and in order to

execute regulations regarding international judicial cooperation in criminal matters, comprised in

international legal instruments to which Romania is a party to, which it is completing for those

cases which are not regulated.

The express regulation of the relation between national criminal law and the legal acts of

the European Union which are not directly applicable in the domestic legal order.

- Modification of Art. 23 paragraph (1) of Law nr. 302/2004 on international judicial

cooperation in criminal matters in the sense that the examination of its own competence and the

adjudication of the criminal legal action to be done ex offico, without exception and without

delay in those cases when the refusal to extradite regards a Romanian national.

- Modification of the provisions of Art. 39-50 from Law no 291/2007 regarding the

entrance, stationing and undertaking of military operation or the transit of foreign armed forces

on the territory of Romania.