Transfer of Proceedings in Criminal Matters

The transfer of proceedings entails a request from one state to another, asking the requested state to initiate legal proceedings for an act that is a punishable offence in both the requesting and the requested state.

Photo: Government Offices of Sweden

Provisions on the transfer of proceedings are given in the Act on international cooperation in criminal proceedings (1976:19), only in Swedish. The application of the Act is restricted to the states that have acceded to the 1972 European Convention on the Transfer of Proceedings in Criminal Matters. Relatively infrequent use is made of this convention as only a few states have ratified it. A number of other conventions also contain provisions on the transfer of proceedings, such as the European Convention on Mutual Assistance in Criminal Matters, the European Convention on Extradition and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

The domestic legislation of the country concerned permitting a transfer of proceedings can also come about even in the absence of a convention. One prerequisite for legal proceedings in Sweden is that there is a Swedish court of competent jurisdiction according to the provisions of Chapter 2 of the Swedish Penal Code. In such cases only the customary rules for criminal proceedings apply.

Transfer of proceedings is primarily an option when the suspect is a habitual resident or national of the requested state, or when the state in question is this person's country of origin. It is also possible for the proceedings to be transferred for various other practical reasons, e.g. when the suspect is undergoing or is about to undergo custodial measures in the requested state or when proceedings have been initiated against him in that state for the same offence or some other offence.

A transfer of proceedings can be an option when extradition for an offence has not been possible. This, in turn, is connected with the prohibition which exists in many states against extradition of their own nationals. In such cases, if the country of domicile was unable to take over the proceedings, there would be a risk of the suspect escaping all liability for his act.

Procedure

A request for transfer of proceedings must be made in writing. The conventions regulating transfer of proceedings state that requests must be made by the Ministry of Justice in the requesting state and addressed to the Ministry of Justice in the requested state. In Sweden, the Ministry of Justice - and at the Ministry, the Central Authority - has been appointed to send and receive requests. In cases involving transfers between Nordic countries, which are based on the Nordic co-operation agreement, the public prosecution offices in the countries concerned communicate directly with one another.

A transfer of proceedings to Sweden is only permitted in cases where the act would have been an offence under Swedish law, if it had been committed in this country and where the person perpetrating the act would have been liable under Swedish law as well. Various circumstances, however, can force the rejection of some such requests, including the expiry of the time limit for prosecution and a potential conflict with Sweden's international commitments or the foundations of our legal order.

When a request for transfer of legal proceedings has been made and approved, and a prosecution has been brought here in Sweden, the court shall pass judgment for the offence to which the act corresponds in Swedish law. If a judgment in this country is based on the Act on international co-operation in criminal proceedings or on the regulations given in Chapter 2, Section 2 of the Penal Code, the court may not impose a penalty that is more severe than the most rigorous punishment allowed for the offence by the law in the place where the act was committed.

Act on international cooperation in criminal proceedings (1976:19)

The Act on international cooperation in criminal proceedings (1976:19) (only in Swedish) contains provisions on the legal consequences in this country of a request for transfer of proceedings and on the further effects of a decision to approve the request. For example, after a request has been made for the transfer of proceedings to another state, an action may not be brought for the offence in Sweden, unless such an action has already been initiated.

The Act on international cooperation in criminal proceedings also contains provisions on the temporary coercive measures which may be taken pending a decision on a request from another state to Sweden for transfer of proceedings. One of these provisions prescribes that, if requested by the other state, the suspect may be arrested or detained in this country as soon as that state has communicated its intention to make a request for proceedings to be transferred. One condition is that Swedish law permits detention for the offence.

A transfer from Sweden can take place at any stage up to the point at which the judgment in the case begins its enforcement; a transfer of proceedings to another state can therefore occur even when sentence has been passed in this country and has become final. However, certain restrictions do apply. A basic condition is that the suspect is convicted for the offence, that the sentence cannot be enforced here even by resorting to extradition procedures and that the other state does not recognise the principle of enforcement of foreign judgments or refuses to enforce such a judgment.

Nordic cooperation agreement

In 1970, the public prosecution offices in the Nordic countries entered into a mutual cooperation agreement. Finland and Iceland have implemented the agreement in its entirety, while Sweden, Norway and Denmark apply only certain parts of the agreement.

According to the Nordic cooperation agreement, an action can be brought in one Nordic state for an offence committed in another, provided that the suspect is domiciled in the state where the action is brought and the offence also is punishable there. If special reasons exist and the state concerned consents, a prosecution for the offence can instead be initiated in whichever Nordic state the suspect is currently living. The proceedings then follow the criminal law and procedural legislation in force in the state which takes over the prosecution of the case.

The authorities in the country where the act was committed are responsible for taking the initiative to transfer the proceedings to another Nordic country. A request from Sweden must be made by the relevant prosecutor.

Transfer of proceedings in cases involving road traffic offences

The Council of Europe has drawn up a Convention on the Punishment of Road Traffic Offences 1969. The main purpose of the Convention is to improve the prospects of effective and simple prosecution of certain enumerated road traffic offences committed by a road user while temporarily outside his country of residence, by means of international co-operation. At the request of the state of offence, the state of residence is required in certain cases to examine the question of proceedings against the offence or to enforce a judgment pronounced in the state of offence. Certain restrictions apply to the Convention, including the requirement of dual criminality and that the time limit for prosecuting the offence has not expired in the state concerned.

Sweden has reserved the right to demand that requests from a non-Nordic country for proceedings in cases involving road traffic offences, together with associated documents, are to be accompanied by a translation into Swedish or English. In addition, Sweden has declared that the Convention is not to be applied between Sweden and the other Nordic countries which have acceded to the Convention or later accede to it. Instead, the procedure for transferring proceedings in cases involving road traffic offences between the Nordic countries is regulated by the Nordic cooperation agreement.

Laws, Conventions and Agreements

Act on the Punishment of Road Traffic Offences Committed Abroad (1971:965) (only in Swedish)

- Act on International Cooperation in Criminal Proceedings (1976:19) (only in Swedish)

- The Proclamation (1972:477) on the Application of paragraph 3 of the Act on the Punishment of Road Traffic Offences Committed Abroad (1971:965) (only in Swedish)

- Ordinance on International Co-operation in Criminal Proceedings (1978:108) (only in Swedish)

- European Convention on Extradition, Article 6.2, 1957 (SÖ 1959:65)

- European Convention on Mutual Legal Assistance in Criminal Matters, Article 21, 1959 (SÖ 1968:15)

- European Convention on the Punishment of Road Traffic Offences, 1964 (SÖ 1972:17)

- European Convention on the transfer of Proceedings in Criminal Matters (SÖ 1976:21)

- European Convention on Suppression of Terrorism, 1977 (SÖ 1977:12)

- United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Article 8, 1988 (SÖ 1991:41)

- Supplementary Convention on Extradition between USA and Sweden, 1961 (SÖ 1984:34)

- Bilateral Treaty with Hungary on Mutual Legal Assistance, Article 16 (SÖ 1986:5)

Bilateral Treaty with Poland on Mutual Legal Assistance, Article 16 (SÖ 1990:9)

- Treaty on Extradition between the Government of Sweden and the Government of Canada, Article 3 (SÖ 2001:42)

- United Nations Convention against Transnational Organized Crime, New York, 15 November 2000 (SÖ 2004:21)

A list of states which are parties to the different conventions is found in notification concerning ratifications made by other states of conventions on cooperation in Criminal Matters (2001:860), only in Swedish.

Contact

Central Authority
Ministry of Justice
Phone +46(0)8-405 45 00
Fax +46(0)8-405 46 76
Visiting address Jakobsgatan 24
Address 103 33 Stockholm
email to Central Authority