Os Conflitos de Jurisdição - Direito Global Publico

Conflicts of Jurisdiction as a Challenge to Global Criminal Justice

Frank Zimmermann^[1]*

I. Introduction: global prosecution or global criminal justice?

This contribution is dedicated to a particular phenomenon: conflicts of jurisdiction in the framework of criminal proceedings. That such conflicts exist is due to the fact that States usually do not restrict the application of their criminal laws to their own territory. Rather, there is a tendency to extend criminal jurisdiction beyond national borders. In fact, under international law States need only a weak link to a case in order to establish their criminal jurisdiction: it shall suffice that an act committed abroad produces some effect on a State’s territory (effects principle), that suspects or victims are nationals or reside in a State’s territory (active and passive nationality / domicile principle), that the act affects important State interests (principle of State protection) or merely that the respective offence is considered so severe that it ought to be punished no matter where it was committed (universality principle).^[2] As a consequence, there is an increasing number of cases where several States can exercise criminal jurisdiction – criminal jurisdiction overlaps. The rationale behind this trend is to create a network of jurisdictions which ensures that serious offences never go unpunished.

Before embarking upon a more detailed analysis, a general observation might help to understand the ideas expressed in this paper. When reference is made to “global” or “globalised” criminal law, this notion certainly includes the core crimes enshrined in the Rome Statute of the International Criminal Court. But they are only a part of the picture. We also have to think of organised crime, terrorism structures and multi-national corporations engaging in activities that are conducted all across the planet. Due to technical development and the opening of national borders there is an increasing tendency of globalisation, and it is a commonplace that therefore also crime is nowadays often a global phenomenon. The enforcement of criminal law, by contrast, often still seems to be confined to national borders, which gives rise to the impression that police and prosecution authorities are always at least one step behind globally acting criminals. From this perspective, a desire for a new, global approach to criminal law and criminal prosecution may be understandable and to some extent justified. Proponents of this idea would probably call for a smooth cooperation of domestic judicial authorities not only with their colleagues from other countries or international organisations, but also with intelligence agencies and even private enterprises. More than anything else, this would presuppose less formalities in the interaction between these protagonists. But would the abolition of seemingly old-fashioned impediments to global prosecution really be a path towards a “brave new world”? Probably not: criminal law and procedure must be formal because formalities help protecting the rights of the persons involved. Without these formalities, global prosecution may indeed become easier. But we would fail to establish a global system of criminal justice. In the context of mutual legal assistance, for instance, the thorough assessment of the case at issue by authorities of the requested State can also serve as a kind of preventive control. Much in the same vein, documentation requirements may often seem tiresome. Nevertheless they allow for effective judicial review and are indispensable in order to control the fairness of proceedings. This being said, the general approach taken in this contribution is that informal solutions (not only, but also) for conflicts of jurisdiction should be handled with care.

II. Problems posed by conflicts of criminal jurisdiction

If a solution to conflicts of jurisdiction shall promote global criminal justice, and not just global prosecution, it is necessary to identify all interests affected by such conflicts in a first step. In this regard, we can distinguish between cases where several State’s want to exercise their jurisdiction to adjudicate (1.), and others where it is merely their jurisdiction to prescribe that overlaps (2.).

1. Multiple jurisdiction to adjudicate

The following case, decided by the District Court of the German city of Augsburg, can be considered a telling example for the problems caused by conflicts of criminal jurisdiction:^[3] 

US citizen Palumbo was residing in Marbella (Spain). From there he was running a huge fraud network of persons, who – without knowing the full criminal plan – sold shares to customers acquired by telephone. The shares turned out to be worthless and a huge number of customers in dozens of countries suffered immense losses.

In this case we can assume that the selling of worthless shares to unsuspecting customers constitutes a fraud offence in various criminal justice systems. Of the countries involved, many could also claim criminal jurisdiction. First and foremost, this applies to Spain, where Palumbo acted, but (depending on how they shape their domestic jurisdiction rules) also to the countries from where the telemarketers made their phone calls. According to the effects principle, also all States where the criminal network caused financial damage could prosecute Palumbo. Similarly, the principle of passive personality would theoretically allow all States whose citizens’ property had been affected to initiate proceedings (it should be noted, however, that many states do not apply this principle). Hence, a large number of States could potentially be interested in prosecution, which makes this almost a paradigm case for a conflict of jurisdiction.

In reality, Palumbo was transferred to Germany and convicted to a prison sentence of three years and six months. However, the judgment only took into consideration the losses caused to German customers. Therefore, Finnish prosecution authorities issued a European Arrest Warrant in order to hold a second trial against Palumbo in Finland.^[4]

a) Problems resulting from the mere overlapping of jurisdiction to adjudicate  

From the suspect’s perspective, such a case entails a risk of repeated prosecution and repeated punishment because most States do not exclude criminal proceedings merely because another State has already finally disposed of the matter. Apart from that, he or she a will often face parallel proceedings in different States, which makes it necessary to organise a parallel defence, for instance in order to seek legal protection against simultaneous coercive measures in different jurisdictions. It goes without saying that this is extremely expensive and more than difficult.^[5] What makes things worst is that States’ legislation in the fields of criminal law and procedure is quite heterogeneous.^[6] In a procedural sense, this concerns, inter alia, rules on the admissibility of evidence (which are often decisive for the probability of a conviction), the defence attorney’s room for manoeuvre, as well as the possibility and effects of a guilty plea. But also with a view to substantive law great differences exist in many fields. It should be noted that this even applies when all states involved regard the respective act as a criminal offence, because then still the range of applicable sanctions can vary considerably. In a case as the one of Palumbo, one can easily imagine that the offender might get away with a few years’ imprisonment in one State, whereas another State provides for a much more draconic penalty. The experience with trials of Somali pirates points in the same direction: whereas the penalties have been rather moderate in some States, others have imposed long-term prison sentences up to life imprisonment^[7] or even the death penalty.^[8] When criminal jurisdiction to adjudicate overlaps, it may thus be very difficult – if not impossible – for a citizen to foresee how severe the penalty may be and which procedural rules will apply. As long as it remains unclear where the case will (first) be adjudicated, the individual concerned can therefore hardly develop a defence strategy and prepare for trial. And of course the perspective of being tried in a foreign jurisdiction, far away from home and with very limited chances of social rehabilitation, puts an even heavier burden on the suspect.