The transfer of criminal proceedings is the measure by which the competent authorities of a State whose jurisdictions are competent to prosecute a crime or an offence ask the authorities of another State, whose jurisdictions are also competent to prosecute the crime or offence, to conduct the prosecution for being in a better position to undertake the procedure.
Instructions: Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union European (art. 6) (Direct request between judicial authorities).
With regard to the way in which the complaint is to be processed, Art. 21 of the European Convention on Mutual Assistance in Criminal Matters, establishes its referral via the Ministry of Justice, by forwarding the proceedings (without prejudice to leaving testimony in the Court), through the Subdirectorate General for International Legal Cooperation of the Ministry of Justice for transmission to the Spanish judicial authorities, although at present, in accordance with the current wording of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, of 29 May 2000, Article 6.1, second paragraph, establishes that “Any information laid by a Member State with a view to proceedings before the courts of another Member State within the meaning of Article 21 of the European Mutual Assistance Convention and Article 42 of the Benelux Treaty may be the subject of direct communications between the competent judicial authorities”.
Grounds to take over the proceedings: Acording to art.21 Convention 1959, there are not specific grounds to take over the proceedings but criteria on jurisdiction should always be respected in line with art. 23 Organic Law for Judiciary Power.
Grounds for refusal: European Convention on the Transfer of Proceedings (1972)
• Article 10. The requested State shall not take action on the request: a if the request does not comply with the provisions of Articles 6, paragraph 1, and 7, paragraph 1; b if the institution of proceedings is contrary to the provisions of Article 35; c if, at the date on the request, the time-limit for criminal proceedings has already expired in the requesting State under the legislation of that State.
• Article 11 Save as provided for in Article 10 the requested State may not refuse acceptance of the request in whole or in part, except in any one or more of the following cases: a if it considers that the grounds on which the request is based under Article 8 are not justified; b if the suspected person is not ordinarily resident in the requested State; c if the suspected person is not a national of the requested State and was not ordinarily resident in the territory of that State at the time of the offence; d if it considers that the offence for which proceedings are requested is an offence of a political nature or a purely military or fiscal one; e if it considers that there are substantial grounds for believing that the request for proceedings was motivated by considerations of race, religion, nationality or political opinion; f if its own law is already applicable to the offence and if at the time of the receipt of the request proceedings were precluded by lapse of time according to that law; Article 26, paragraph 2, shall not apply in such a case; g if its competence is exclusively grounded on Article 2 and if at the time of the receipt of the request proceedings would be precluded by lapse of time according to its law, the prolongation of the time-limit by six months under the terms of Article 23 being taken into consideration; h if the offence was committed outside the territory of the requesting State; i if proceedings would be contrary to the international undertakings of the requested State; j if proceedings would be contrary to the fundamental principles of the legal system of the requested State; k if the requesting State has violated a rule of procedure laid down in this Convention.
• Article 12 1 The requested State shall withdraw its acceptance of the request if, subsequent to this acceptance, a ground mentioned in Article 10 of this Convention for not taking action on the request becomes apparent. 2 The requested State may withdraw its acceptance of the request: a if it becomes apparent that the presence in person of the suspected person cannot be ensured at the hearing of the proceedings in that State or that any sentence, which might be passed, could not be enforced in that State; b if one of the grounds for refusal mentioned in Article 11 becomes apparent before the case is brought before a court; or c in other cases, if the requesting State agrees.