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Transfer of criminal proceedings

 

The transfer of proceedings in criminal matters from one country to another occurs to increase the likelihood of a successful prosecution.  It is not unusual to have criminal acts committed and victims located in several countries, with proceeds of the criminal acts laundered through the financial systems of multiple countries and members of the criminal organization operating or living in yet another country. In such instances, it is more practical, efficient, and fairer to all parties concerned - including offenders and victims - to consolidate the case in one place. The transfer of criminal proceedings is an important tool to facilitate the administration of justice and, in some instance, may be the only way to pursue a prosecution.

The circumstances usually involve one country in a better position to conduct the proceedings, or a transfer will increase the efficiency and effectiveness of the prosecution in a country that is initiating proceedings in lieu of extradition. In some cases, it occurs in a case involving several jurisdictions, and an agreement is reached that transferring the criminal proceeding to one location will concentrate the prosecution effort and resources, and increase the efficiency and the likelihood of success.

Issues that arise in consideration of these transfers of proceedings is whether domestic laws permit the transfer of criminal proceedings to a foreign jurisdiction and, if so, what restrictions are placed on those transfers. In addition, existing treaty obligations, and the nature and notoriety of the case involved play an important role in making decisions about the transfer of criminal proceedings (for further information see UNODC background paper: Practical considerations, good practices and challenges encountered in the area of transfer of criminal proceedings as a separate form of international cooperation in criminal matters)

From a practical point of view, in order to effectively transfer the prosecution to another State, two steps may be required. First, the two countries would need to share and transfer information and evidence. Article 15(5) of the Convention provides that, where two States are involved in the investigation, prosecution or judicial proceedings with respect to the same conduct, they shall, as appropriate, consult one another with a view to coordinating actions. Secondly, if the matter had already reached the courts in one country it would be necessary to "stay" or suspend the prosecution, pending resolution in the other country.

UNODC technical assistance tools on transfer of criminal proceedings

UNODC has developed a  Model Treaty on the Transfer of Proceedings in Criminal Matters that may be instructive to States parties interested in negotiating and concluding bilateral or multilateral treaties aimed at improving cooperation in matters of crime prevention and criminal justice.

The Organized Crime Convention addresses transfer of criminal proceedings in article 21.

Article 21. Transfer of criminal proceedings

States Parties shall consider the possibility of transferring to one another proceedings for the prosecution of an offence covered by this Convention in cases where such transfer is considered to be in the interests of the proper administration of justice, in particular in cases where several jurisdictions are involved, with a view to concentrating the prosecution.

The provision is not mandatory, meaning that State parties are not obliged to implement it but they are obliged to consider the possibility. Nevertheless, the existence of such provisions contributes to greater possibilities for international cooperation to combat transnational organized crime.

 

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