Abstract
Judicial cooperation in criminal matters between the Nordic states has traditionally been extensive. This cooperation has included matters of extradition, legal assistance in regard to evidence, transfer of the enforcement of punishments and transfer of criminal proceedings and criminal jurisdiction. Since the late twentieth century and the early twenty-first century, the Nordic cooperation agreements have to a rather significant degree been replaced or complemented by EU legislation. Nevertheless, the Nordic agreements continue to be of relevance in many aspects, which gives rise to a rather complicated system of interwoven legal frameworks. This contribution aims to point out legal similarities and differences as well as overlaps between these frameworks, but also to elaborate on the characteristics of the Nordic cooperation as compared to the EU regulated cooperation system. It is specifically argued that the reason for the success of the Nordic cooperation is the mutual trust that the Nordic states share. However, this trust differs somewhat from the trust that is presumed to exist also between the EU Member States.
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1 Introduction
Within the EU—a form of regional cooperation itself—there have historically existed two regions with an even closer regional—or sub-regional—cooperation, namely the Benelux states and the Nordic states. This regional cooperation has also concerned criminal and criminal procedural matters.Footnote 1 In this chapter, I will focus on matters of judicial cooperation in criminal matters between the Nordic states. By this, I mean cooperation through different means with the aim of facilitating transnational criminal law enforcement. A systematic examination of the core areas of judicial cooperation and their regulation in the Nordic states is given. Today, these areas are to a significant degree regulated by EU law, but to a large extent they are also regulated by regional Nordic agreements. The Nordic framework is compared to the corresponding EU legal framework throughout the text. The aim is not only to point out legal similarities and differences as well as overlaps between these frameworks but also to elaborate on the characteristics of the Nordic cooperation as compared to the EU regulated cooperation system. Specifically, I will discuss whether the mutual trust on which the Nordic cooperation is based is comparable to the mutual trust that is presumed to exist between the EU Member States.
I will mainly use Finnish legislation to exemplify the national implementation of Nordic cooperation agreements. This is done with the full understanding that the legal provisions in other Nordic states may differ in certain specific regards. References are, however, occasionally also made to the legislation of other Nordic states. Since the Nordic legal framework in this area is largely based on inter-Nordic agreements, national legislation is to a large degree comparable. My aim is not to conduct an in-depth comparison between specific legal provisions of the Nordic states but to highlight features that are common for all of these states.
2 Judicial Cooperation in Criminal Matters Between the Nordic States
Judicial cooperation in criminal matters between the Nordic states has traditionally been extensive. Perhaps unlike the cooperation between the Benelux states, the Nordic cooperation has not decreased with time, at least not significantly, although it has to a rather significant degree been replaced or complemented by EU cooperation since the late twentieth century and the early twenty-first century.Footnote 2 Nevertheless, inter-Nordic agreements are in many respects still relevant. This gives rise to a rather complicated system that is not always easy to grasp, since several inter-related legal frameworks have to be taken into consideration. The answer to the question of whether the Nordic cooperation has acted as a concrete inspiration and ideal model for the current EU cooperation based on the principle of mutual recognition does not seem to be unequivocally clear, but there does seem to be consensus that this is almost certainly the case.Footnote 3
As a starting point, cooperation between the Nordic EU states of Denmark, Finland and Sweden is based on EU legislation, while cooperation between these countries and Norway and Iceland is based on inter-Nordic agreements. However, EU legislation takes precedence only so long as the Nordic countries have not introduced legislation of their own that allows cooperation to be “extended or enlarged” and helps to “simplify and facilitate further the procedures” dealt with by EU law and “provided that the level of safeguards set out” in EU law is respected.Footnote 4 This circumstance calls for due care, since authorities in the Nordic states have to keep different legal regimes in mind with regard to matters of judicial cooperation.Footnote 5
The Nordic cooperation in criminal matters intensified after the Second World War and especially during the 1960’s, when several agreements on cooperation were adopted.Footnote 6 The general framework for this cooperation was based on the so-called Helsinki Treaty of 1962, which included provisions on, inter alia:
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equal treatment of Nordic citizens in the drafting of laws and regulations (art. 2).
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establishing uniform rules relating to criminal offences and penalties. With regard to criminal offences committed in one Nordic country, all other Nordic countries should as far as possible be able to investigate and prosecute such offences (art. 5).
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ensuring that decisions by a court of law or other public authority in one Nordic country can also be executed in the other Nordic countries (art. 7).
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ensuring that public authorities in the Nordic countries may correspond directly with one another (art. 42).
Since the 1960s, the main forum for furthering cooperation has been the Nordic council of ministers. In addition, the Nordic Criminal Law Committee—a body consisting of civil servants with expertise in criminal law—has also been of great importance through its legislative draft reports.Footnote 7
There are, of course, many reasons why the Nordic states have chosen to cooperate so closely with each other and why this cooperation has proven so successful.Footnote 8 First of all, the Nordic countries have a long history of cooperation in legal matters in general. The common history between the Nordic countries has led to similar legal traditions and similarities in economic, social and cultural development, as well as common approaches to crime control and human rights policies. Much has been written on the largely common penal policy of the Nordic states. This policy is commonly characterised by a low level of penal repression. Another joint feature is the traditionally welfarist view on criminality, which considers crime to be foremost a social problem that should be dealt with not only by means of criminal law. Needless to say, these features amount to a certain degree of common understanding on how criminality should be managed.Footnote 9 Still today, the Nordic states often look to each other for possible solutions when deliberating on legal amendments.Footnote 10
These factors, in turn, have fostered a strong mutual confidence or trust between the Nordic countries, which can be regarded as a pre-requisite for a well-functioning cooperation. This mutual trust has, in turn, enabled a more effective cooperation due to the fact that the Nordic states have been able to agree upon common principles and procedural rules governing such cooperation. As is well known, the current cooperation in the EU, based on the principle of mutual recognition, is specifically presumed to require a sufficient degree of mutual trust among the Member States.
According to the Court of Justice of the European Union (ECJ), the principle of mutualrecognition by necessity implies that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied.Footnote 11 The principle of mutual recognition is said to be founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level.Footnote 12 This presumption of mutual trust in turn requires that each Member State consider all the other Member States to be in compliance with EU law and particularly with the fundamental rights recognised by EU law.Footnote 13
This legal structure is said to be based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded. This premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.Footnote 14 Consequently, the EU prima facie demands of its Member States that they trust each other in the name of effective cooperation.
However, as the recent development with regard to upholding human rights and the rule of law within the EU has shown, trust is not something that can be simply be presumed and taken for granted.Footnote 15 According to the ECJ, limitations of the principles of mutual recognition and mutual trust between Member States can be made ‘in exceptional circumstances’.Footnote 16 Judicial cooperation through mutual recognition can function to different degrees, depending on how far the states are willing to go. This in turn depends on the level of trust the states have in each other: the more trust, the farther recognition may be taken. The number of limitations the states place on cooperation indicates the character and degree of mutual recognition they are willing to accept.Footnote 17
The Nordic states have abolished—or at least alleviated—several of the traditional obstacles to judicial cooperation in criminal matters, simplified the procedures for cooperation and even harmonised parts of their national criminal procedural legislation. The Nordic states were also forerunners in allowing direct communication between competent authorities (prosecutors, courts) in matters of judicial cooperation—without involvement of central authorities such as the ministries of justice—even before this model was adopted in the cooperative framework of the EU and the Council of Europe.Footnote 18
One of the fundamental initial ideas behind applying mutual recognition in criminal matters in the EU was that cooperation should be possible despite differences in substantive and procedural law.Footnote 19 Mutual recognition was regarded as a less intrusive method: instead of harmonising the laws of the Member States, the Member States should simply accept and disregard legal differences and recognise each other’s judicial decisions. However, the cooperation between the Nordic states seems to have functioned so well precisely because these areas of law do not differ very much between them. It should be noted, however, that the legal similarities between the Nordic States have not simply come about by coincidence but are also a result of conscious measures. For instance, the Nordic council endeavoured to harmonise the criminal and procedural legislations of the Nordic states during the latter half of the twentieth century. This precondition of legal similarity has gradually also become clear at the EU level: mutual recognition is not feasible without some degree of harmonisation of both substantive criminal law and criminal procedural law.Footnote 20 However, it should also be pointed out that the criminal legislations in the Nordic states are far from completely identical. One area in which the solutions differ quite radically is prostitution. Prostitution is legal in Denmark and Finland, whereas Norway, Iceland and Sweden have criminalised the purchase of sexual services.Footnote 21 It is certainly not inconceivable that such differences might have a negative impact on the possibilities of cooperation.Footnote 22
Also, it should not be forgotten that the inter-state movement between the Nordic states has traditionally been relatively intense. This has, among other things, been due to the countries’ geographical proximity and flexible migration rules.Footnote 23 Among the individual criminal cases with foreign elements, many contain elements (e.g., the nationality of the offender or victim) that pertain to other Nordic countries. These circumstances in turn, have made effective cooperation in criminal matters more or less a necessity among the Nordic states.Footnote 24
Below, I will give an account of the main forms of judicial cooperation in criminal matters, which include: extradition, legal assistance in regard to evidence, transfer of the enforcement of punishments and transfer of criminal proceedings and criminal jurisdiction.Footnote 25 The Nordic agreements will be reflected against the EU framework throughout the text.
3 Extradition
Extradition between the Nordic states was initially based on bilateral treaties during the early twentieth century. However, cooperation gradually became increasingly informal and detached from these treaty obligations.Footnote 26 In a sense, trust grew naturally out of this perceived well-functioning and effective cooperation.
Following this early period, the Nordic countries agreed upon substantially identical legislation on extradition in the 1950s and 1960s.This agreement did not take the form of an international convention, which is something that overall has been characteristic for the Nordic cooperation.Footnote 27 Cooperation has often been based not on officially binding conventions but, rather, on ‘informal’ agreements on harmonisation and a willingness to assist one another. A certain reluctance towards over-formalisation and an emphasis on pragmatical solutions can clearly be perceived.Footnote 28 In fact, the mutual trust between the Nordic states may initially have led to the notion that cooperation did not require binding agreements, since this trust rendered cooperation possible on its own.Footnote 29 This type of cooperation is strikingly different from the EU cooperation, where trust has formally been declared and demanded of the Member States by way of binding instruments in order to achieve effective cooperation.
In a way, Nordic cooperation during this era did indeed signify a form of mutual recognition. However, the system was in fact based on facultative cooperation and did not explicitly require any recognition at all.Footnote 30 The formal requirement to cooperate and the institutionalisation of mutual recognition only came later due to EU obligations. Thus, one could say that the Nordic system does not require mutual recognition, but that it nevertheless functions in the same way as a mutual recognition based system due to a strong degree of mutual trust and willingness to cooperate.
The Nordic extradition regime functioned in parallel with the extradition framework of the Council of Europe and the EU during the latter half of the twentieth century. In 2003, the framework decision on the European arrest warrant (EAW) was adopted in the EU.Footnote 31 This was the first instrument based on the principle of mutual recognition in criminal matters. The idea behind the EAW as well as the principle of mutual recognition was to simplify judicial cooperation in criminal matters and make it more effective by removing several of the legal obstacles that had traditionally made such cooperation cumbersome and time-consuming.
However, it did not take long for the Nordic countries to update their own extradition framework. The Nordic ministers of justice had already concluded in 2002 that the Nordic extradition regime should be revised.Footnote 32 In 2012, the Convention on surrender on the basis of an offence between the Nordic states finally entered into force. This convention is generally referred to as the ‘Nordic arrest warrant’ (NAW).Footnote 33
To take Finland as an example, this situation entails that the authorities have to operate with three different extradition regimes, depending on which country is involved in the extradition procedure. The Act on Extradition between Finland and Other Nordic Countries (1383/2007) specifically applies to surrender procedures between Finland and other Nordic countries. If surrender is to take place between Finland and another EU country that is not a Nordic country, the Act on Extradition on the Basis of an Offence Between Finland and Other Member States of the European Union (1286/2003) applies. To make things even more complicated, if surrender is to take place between Finland and a state that is neither an EU nor a Nordic state, the so-called General Extradition Act (456/1970) applies. This means that three different extradition regimes apply depending on the nature of the country involved in the extradition procedure.Footnote 34
As already mentioned, the premise within both the EU and the Council of Europe has been that regional cooperation is allowed and even desirable, as long as this cooperation goes further than the existing European regulations. According to the EAW framework decision (art. 31.2), ‘Member States may conclude bilateral or multilateral agreements or arrangements […] in so far as such agreements or arrangements allow the prescriptions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons’.
The NAW, in many ways, goes further than the EAW in simplifying the extradition procedure and making it more effective.Footnote 35 Perhaps one of the greatest divergences between the EAW and the NAW is that the NAW does not require double criminality under any circumstances; rather, it only requires that the offence in question must have a more severe punishment than fines. If all legal systems were identical, the requirement of double criminality would essentially lose its significance. Although far from completely identical, the Nordic systems are still so similar that requiring double criminality has been considered redundant.Footnote 36 However, it should be noted that the abolishment of the double criminality requirement did not come about with the NAW. Rather, this requirement had already been abolished in the previous legal framework for extradition between the Nordic countries from the 1960s.Footnote 37
Another change that came with the EAW was the obligation for Member States to surrender their own nationals.Footnote 38 As is well known, states traditionally do not surrender their own nationals.Footnote 39 If the EAW has been issued for the purposes of execution of a custodial sentence or detention order, surrender may be refused if the executing Member State undertakes to execute the sentence or detention order in accordance with its domestic law, provided that the requested person is staying in, or is a national or a resident of, the executing Member State (art. 4.6). Furthermore, if the EAW has been issued for the purpose of conducting a criminal prosecution and the person who is the subject of the EAW is a national or resident of the executing Member State, the executing Member State may make surrender subject to the condition that the person is returned to the executing Member State in order to serve his or her sentence (art. 5.3).
The Nordic states have also acted as forerunners in this regard. The extradition regime preceding the NAW already allowed for the surrender of nationals to other Nordic countries, albeit with certain additional requirements.Footnote 40 The abolishment of these requirements can, again, be regarded as a sign of mutual trust between the Nordic states.
Interestingly, the Nordic states have abolished several grounds for refusal that still persist within the EU cooperation regime, whereas they have preserved grounds for refusal that have been difficult for the EU to accept. According to ch. 2, sec. 4.6 of the act on Extradition between Finland and Other Nordic Countries, extradition shall be refused if there are justifiable grounds to suspect that the requested person is threatened by capital punishment, torture or other degrading treatment or that he or she would be subjected to persecution due to, inter alia, his or her religion, beliefs or political opinions. The same also applies if there is justifiable cause to assume that he or she would be subjected to a violation of his or her human rights or constitutionally protected due process, freedom of speech or freedom of association.
The question of refusal to surrender due to potential human rights violations has been highly topical in regard to the EAW during the last few years. The threat of persecution or other human rights violations is an established ground for refusal in the traditional system of extradition as well as other forms of judicial cooperation in criminal matters.Footnote 41 However, when the EAW framework decision was adopted, no such ground for refusal was explicitly included in the instrument. This was largely the case because such a ground for refusal would intrinsically seem to be contradictory to the whole idea of mutual recognition and mutual trust. If there is a presumption of trust, then Member States should in principle also have faith that human rights are respected in all other Member States. It was not until 2016 that the EU Court of Justice explicitly confirmed that a risk of human or fundamental rights violations in the requesting state may act as a ground for refusal, albeit under ‘exceptional circumstances’.Footnote 42
When Finland implemented the EAW framework decision in Finnish legislation, it was nevertheless decided that threats of persecution or other human rights violations should be included as a mandatory ground for refusal. According to the Finnish government, this ground for refusal could be derived from the general wording of the framework decision as well as Finland’s other international human rights obligations.Footnote 43 The same solution was also adopted in several other Member States.Footnote 44
If we consider mutual trust to inherently require that the human rights standards of other states should never be questioned, it would seem natural that the Nordic states would not apply such a ground for refusal. However, this assumption was evidently not regarded as a problem when the NAW was implemented in Finland, as well as in the other Nordic states, even though the NAW convention does not explicitly contain such a ground for refusal.Footnote 45 According to the Finnish government, the obligation to respect human rights, and consequently the obligation to refuse extradition when these rights are threatened, can be derived from the purpose of the convention as well as the Finnish constitution.Footnote 46 This clearly demonstrates that mutual trust does not require blind trust in other states’ abilities to invariably uphold human rights guarantees. Trust can be conditional even between states that are as closely interconnected and confident in each other’s legal systems as the Nordic states.Footnote 47
4 Legal Assistance in Regard to Evidence
A treaty on mutual legal assistance in criminal matters was adopted among the Nordic states in 1974.Footnote 48 This treaty mainly concerns mutual legal assistance through service and taking of evidence. For instance, it enables the hearing of witnesses to be conducted in another Nordic state.Footnote 49
The treaty was implemented in Finland through a Decree (470/1975) but also partly through a separate Act on the obligation in certain cases to appear before a court in another Nordic country (349/1975). According to this Act, a person who has reached the age of 18 years and who permanently resides in a Nordic country has an obligation to appear before a court in another Nordic country to be heard as a witness, taking into account the importance of such a hearing and possible inconveniences that may be caused by it. This obligation concerns not only witnesses but also parties in criminal cases (secs. 1 and 9).
In addition to this Nordic agreement, the general act on International Legal Assistance in Criminal Matters (4/1994) applies in Finland. This act concerns most forms of legal assistance, except, inter alia, extradition and transfer of the enforcement of punishments (sec. 1 and 2). It is applied parallel to the above-mentioned Nordic agreement, insofar as the same forms of legal assistance are concerned. However, the Nordic agreement allows for more extensive communication between competent authorities and also makes it possible to communicate in Danish and Norwegian, in addition to Finnish and Swedish.Footnote 50
On the EU level, directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order (EIO) in criminal matters was adopted on 3 April 2014. The directive makes it possible for a Member State to have one or several specific investigative measures carried out in another Member State to obtain evidence. It also concerns evidence that is already in the possession of the competent authorities of the executing State (art. 1). With regard to the relationship between Finland and the other EU Member States, the general act on International Legal Assistance in Criminal Matters applies only to measures that are not regulated by the EIO directive (sec. 1.3). However, since Denmark does not take part in the EIO (p. 45 of the directive’s preamble), previous agreements—including Nordic ones—on legal assistance will continue to apply in regard to Denmark.Footnote 51 Naturally, Norway and Iceland also do not take part in the EIO. It should also be noted that the EIO directive, in the same way as the EAW framework decision, allows for bilateral and multilateral agreements, ‘insofar as these make it possible to further strengthen the aims of this Directive and contribute to simplifying or further facilitating the procedures for gathering evidence’ (art. 34.3).
Again, we can see that inter-Nordic agreements are not completely replaced by EU legislation but continue to apply and to be of practical relevance. However, it must be said that things are not made easy for the legal authorities, since these again have to keep in mind several different, inter-related legal frameworks. To some degree, more far-reaching obligations than those between the EU Member States seem to be rendered possible between the Nordic states specifically due to their close geographical proximity. This especially concerns the obligation to appear before other Nordic courts to be heard as a witness.Footnote 52
5 Transfer of the Enforcement of Sentences
In the 1960s, an agreement was concluded between the Nordic States on transferring of the enforcement of a sentence from one Nordic country to another. In Finland, the Act on cooperation between Finland and the other Nordic states on the enforcement of criminal sentences was adopted in 1963 (326/1963).
This form of cooperation, among other things, makes it possible to transfer the enforcement of fines, confiscations, conditional and unconditional prison sentences, conditional release from prison and community service sentences from one Nordic country to another. Such transfer of enforcement can be deemed appropriate especially when the sentenced person is a citizen of a Nordic state other than the one that imposed the sentence, or when he or she has his or her permanent residence or has resided for a long time in such a state. After the transfer, the punishment is enforced largely in accordance with the law of the enforcing state.Footnote 53
Like extradition and legal assistance in regard to evidence, this form of cooperation also takes place alongside the EU framework on the transfer of criminal sentences. At the EU level, there are four instruments that deal with transfer of enforcement. Specifically, these concern financial penalties,Footnote 54 confiscation,Footnote 55 probation measures and alternative sanctionsFootnote 56 and custodial sentences.Footnote 57 When these instruments were implemented in Finland, it was concluded that the Nordic enforcement act should continue to apply between Finland and the Nordic EU Member States (i.e., Denmark and Sweden), since this act essentially helps to simplify and further facilitate the procedures regulated by the EU instruments. Here, again, all the EU instruments in question allow for more far-reaching cooperation. Denmark and Sweden have also declared that they will continue to apply the Nordic arrangements.Footnote 58
6 Criminal Jurisdiction and Transfer of Criminal Proceedings
In 1970, the chief prosecutorial authorities of the Nordic countries concluded an agreement on the transfer of criminal proceedings in certain cases. The agreement essentially consolidated practice that had been common among the Nordic police and prosecutorial authorities since the 1940s.Footnote 59 Like many other Nordic agreements, this agreement does not have the nature of an official treaty and has not been implemented as such in the Nordic states. In practice, however, it has nevertheless been applied as an official treaty.Footnote 60 The agreement also does not impose any legal duties on the states per se but, rather, is a practical agreement between the prosecutorial authorities of the states.Footnote 61 Here, again, we can see that informal cooperation is the key feature, which is made practically functional due to mutual trust.
The aforementioned agreement makes it possible for charges for an offence that has been committed in one Nordic state to be brought in another Nordic state, if the suspect resides in the latter state and the act in question is also punishable in that state. Under certain conditions, charges may also be brought in the state where the suspect is found instead of in the place where the act was committed. When choosing the proper forum for prosecution, both the interests of the suspect and the possibilities of an effective investigation of the matter should be taken into consideration.Footnote 62 Prosecution is then transferred following a request of the competent authority (i.e., a prosecutorial authority) in the Nordic state where the act was committed. The aim is essentially to enable a ‘proper administration of justice’ that renders it possible to take into account all circumstances that have a bearing on the matter when deciding where to prosecute.Footnote 63
In ch. 1 of the Finnish Criminal Code (39/1889), concerning the scope of application of Finnish criminal law (i.e., Finland’s criminal jurisdiction), this agreement can be seen firstly in the provision on offences committed by Finns (sec. 6). According to this provision, Finnish law applies to offences committed outside of Finland by Finnish citizens. The provision further states that ‘a person who was apprehended in Finland and who at the beginning of the court proceedings is a citizen of Denmark, Iceland, Norway or Sweden or at that time is permanently resident in one of those countries’ is deemed equivalent to a Finnish citizen. This means that charges can be brought in Finland against a resident of another Nordic country, even if the only connection to Finland is that the person in question was apprehended in Finland. Consequently, from a jurisdictional perspective, all Nordic citizens are treated equally, with the additional requirement that they are apprehended in the forum state. Today, all Nordic states have a corresponding jurisdictional provision on Nordic residents.Footnote 64 Here, one can speak of a ‘Nordic’ principle of active personality in combination with a principle of apprehension.Footnote 65
The agreement between the Nordic prosecutors can also be seen in the Finnish criminal code’s provision on the requirement of a prosecution order by the Prosecutor General (ch. 1, sec. 12). The point of departure of this provision is that offences committed outside Finland may not be investigated or prosecuted in Finland without a separate prosecution order by the Prosecutor General. The idea behind the provision is that the Prosecutor General should make an assessment of whether or not it is appropriate that the case be handled in Finland, taking into consideration both the interests of the suspect and those of other states that might be better suited to deal with the matter. In the same way as mentioned above, this mechanism enables a proper administration of justice in cases of concurrent criminal jurisdiction.Footnote 66
However, an order by the Prosecutor General is not required if the offence was committed in one of the other Nordic countries and the competent public prosecutor of the place of commission has requested that the offence be tried in a Finnish court. In this case, a request of transfer from one Nordic prosecutor to another is sufficient. Since the Nordic agreement on transfer of criminal proceedings is intended to facilitate flexible cooperation between the Nordic prosecutors, the requirement of a separate prosecution order by the Prosecutor General would be contradictory to this purpose.Footnote 67 The competent Nordic prosecutors are thus authorised to handle the question of where to prosecute among themselves, without the involvement of any higher prosecutorial authorities.
This form of Nordic cooperation is perhaps the most far-reaching one in comparison to the EU level. In 2009, several Member States put forward an initiative for a framework decision on the transfer of proceedings in criminal matters.Footnote 68 The objective of the framework decision would have been to ‘increase efficiency in criminal proceedings and to improve the proper administration of justice within the area of freedom, security and justice by establishing common rules facilitating the transfer of criminal proceedings between competent authorities of the Member States, taking into account the legitimate interests of suspects and victims’. However, the framework decision was never adopted due to the entry into force of the Lisbon Treaty, and no similar proposal has been put forward since then.Footnote 69 From a jurisdictional perspective, the populations of the EU Member States are not treated as EU citizens but rather as citizens of each Member State. In contrast to the Nordic States, the EU is apparently not yet ready for such a level of mutual trust and profound cooperation.
7 Conclusion
Nordic cooperation is still very much alive in practice, although common legislative efforts (e.g., by the Nordic Criminal Law Committee) have decreased since the 1980’s.Footnote 70 The latest large-scale common project was the NAW. However, despite EU instruments replacing several of the former Nordic agreements, the Nordic states still continue to apply their own regional framework in many areas.
A few years before the EU cooperation in criminal matters seriously took off in the early 2000s, it was explicitly stated that the Nordic states should endeavour as far as possible to create a ‘borderless area for cooperation in criminal matters’.Footnote 71 Here, parallels can clearly be drawn to the idea of the EU as a ‘single judicial area’. In such an area, not only would judgments and other judicial decisions ideally move freely, but also it would not be of relevance where an offence was committed, since all states would have jurisdiction over all offences committed within the common area. Law enforcement authorities would also be able to move freely and apply coercive and other measures irrespective of national borders.Footnote 72 Although the Nordic states cannot yet be said to constitute a ‘single judicial area’ of their own, one can see that the Nordic cooperation relatively consistently goes deeper than the EU cooperation does.
On the other hand, EU legislation should not necessarily be regarded as something negative that has only encroached upon the ‘good old’ Nordic cooperation. Simplification and pragmatism are certainly desirable, as long as they do not bring about legal uncertainty or disadvantages for the individual persons involved.Footnote 73 EU legislation in the field of judicial cooperation in criminal matters has perhaps resulted in more strictly prescribed formalities, but it has likely also strengthened the procedural rights of suspects, defendants and victims.Footnote 74
Whatever the reasons are for the success of the Nordic cooperation within the area of judicial cooperation in criminal matters, there seems to be agreement that this success is due to one key feature: mutual trust.Footnote 75 The foundation for this trust is obviously more solid than that between the EU Member States for several reasons, including legal, political and otherwise societal similarities. However, the characterisation of this trust is also different from that of the EU. Nordic cooperation initially grew out of a perceived practical need for fewer formalities and greater efficiency. This is certainly also true for the development of the EU cooperation, but the Nordic cooperation has not been as ideologically coloured as the EU cooperation. While mutual trust among the EU Member States was more or less declared and demanded, trust among the Nordic states developed naturally and organically: the Nordic states were never required to trust each other but simply decided to jointly do so, because it was perceived as practically feasible.Footnote 76 However, even between the Nordic states, trust does not imply blind trust, as is indicated by the retention of a human and fundamental rights clause in regard to cooperation. As has been pointed out many times, the mere fact that trust is declared does not mean that it actually exists.Footnote 77 Trust needs to be fostered in order to develop and persist. The Nordic states have strived to do this, not only through common legal solutions but also by learning from each other’s legal experiences. There is doubtless still much for the EU to learn from the Nordic states.
Notes
- 1.
- 2.
- 3.
- 4.
Most EU instruments explicitly allow such further integration; see, e.g., art. 34.3 of directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters O.J. L130/1 (2014).
- 5.
Additionally, there are also separate agreements between Norway and Iceland and the EU (excluding the Nordic EU countries); e.g., the Agreement on the surrender procedure between the Member States of the European Union and Iceland and Norway O.J. L292/1 (2006). See further on this matter Suominen and Kvam (2009).
- 6.
See, e.g., Lahti and Träskman (1994), p. 256.
- 7.
- 8.
See generally Lahti and Träskman (1994), pp. 256–257.
- 9.
- 10.
- 11.
Joined cases C-187/01 Gözütok and C-385/01 Brügge, Judgment of the Court of 11 February 2003, ECLI:EU:C:2003:87, para. 33.
- 12.
Joined cases C-404/15 Aranyosi and C-659/15 Căldăraru, Judgment of the Court (Grand Chamber) of 5 April 2016, ECLI:EU:C:2016:198, para. 77.
- 13.
Opinion 2/13 of the ECJ, ECLI:EU:C:2014:2454, para. 191. Further on this presumption, see Sicurella (2018), pp. 309–312.
- 14.
Opinion 2/13 of the ECJ, ECLI:EU:C:2014:2454, para. 168.
- 15.
See in depth Satzger (2018a).
- 16.
Opinion 2/13 of the ECJ, ECLI:EU:C:2014:2454, para. 191 and joined cases C-404/15 Aranyosi and C-659/15 Căldăraru, Judgment of the Court (Grand Chamber) of 5 April 2016, ECLI:EU:C:2016:198, para. 82. See most recently, Case C‑128/18 Dorobantu ECLI:EU:C:2019:857, para. 47.
- 17.
- 18.
Thunberg Schunke (2004), p. 177.
- 19.
See, e.g., Communication from the Commission to the Council and the European Parliament—Mutual recognition of Final Decisions in criminal matters (COM/2000/0495 final), p. 4 and Satzger (2019), p. 45.
- 20.
See, e.g., Thunberg Schunke (2013), p. 8.
- 21.
- 22.
Cf Mathisen (2010), p. 25.
- 23.
See Tolttila (2011), pp. 369–370.
- 24.
Lahti and Träskman (1994), p. 257.
- 25.
On different forms of judicial cooperation in criminal matters, see, e.g., Satzger (2018b) pp. 4–6.
- 26.
- 27.
- 28.
- 29.
- 30.
Mathisen (2010), p. 16.
- 31.
Council framework decision (2002/584/JHA) of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States O.J. L190/1 (2002).
- 32.
Mathisen (2010), p. 17.
- 33.
See generally, e.g., Suominen (2014).
- 34.
The situation would also seem to be similar in the other Nordic countries. See, e.g., Strandbakken (2009), p. 367.
- 35.
For an in-depth analysis of the differences between the EAW and the NAW, see Mathisen (2010).
- 36.
See Asp (1998), p. 11. However, the territoriality exception may still apply. According to Finland’s ‘Nordic’ extradition act, double criminality is required when the act in question is deemed to have been committed in Finland or on board a Finnish vessel.
- 37.
Lahti and Träskman (1994), p. 274.
- 38.
Suominen (2011), p. 129.
- 39.
- 40.
- 41.
See, e.g., Lahti and Träskman (1994), pp. 279–280.
- 42.
- 43.
Finnish Government Bill HE 88/2003 vp, p. 22.
- 44.
See Suominen (2011), p. 307.
- 45.
See Suominen (2011), pp. 204–218.
- 46.
Finnish Government Bill 51/2007 vp, p. 18.
- 47.
Similarly also Suominen (2011), p. 220.
- 48.
Treaty of 26 April 1974 between Finland, Denmark, Iceland, Norway and Sweden on mutual assistance through service and taking of evidence.
- 49.
See Lahti and Träskman (1994), p. 282.
- 50.
See further on this matter, Finnish Government Bill 61/1993 vp, pp. 11–12, 26, 28 and 34.
- 51.
Finnish Government Bill 29/2017 vp, p. 90. See also Espina Ramos (2019), p. 55.
- 52.
See Asp (1998), pp. 27 and 37.
- 53.
Lahti and Träskman (1994), p. 284.
- 54.
Council framework decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties O.J. L76/16 (2005).
- 55.
Council framework decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders O.J. L328/59 (2006).
- 56.
Council framework decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions O.J. L377/102 (2008).
- 57.
Council framework decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union O.J. L327/27 (2008).
- 58.
See Finnish Government Bills HE 142/2006 vp, pp. 8–9, 25 and 28; HE 47/2007 vp, pp. 11–12 and 40–44; HE 10/2011 vp, pp. 33, 51–52, 62 and 66; and HE 97/2014 vp, p. 7.
- 59.
Asp (1998), p. 17.
- 60.
Lahti and Träskman (1994), p. 283.
- 61.
See Strandbakken (2009), p. 371.
- 62.
Lahti and Träskman (1994), pp. 283–284.
- 63.
See Vander Beken et al. (2002), p. 25 and Helenius (2014), p. 135. Cf. also Explanatory report (Basic Solutions) to the European Convention on the Transfer of Proceedings in Criminal Matters (CETS No. 73): ‘The transfer of proceedings may take place in respect of any offence which may be prosecuted in the requesting State and in respect of which the condition of dual criminal liability is fulfilled, if such a transfer is in the interests of a proper administration of justice.’ It should be noted that among the Nordic States, Finland has not signed the European Convention on the Transfer of Proceedings in Criminal Matters of 1972 (ETS No.073). Iceland has signed the treaty but not ratified it.
- 64.
- 65.
Helenius (2014), p. 241. ‘Active personality’ here refers to both the nationality and the domicile of the person, since both connections constitute sufficient grounds for jurisdiction.
- 66.
See Helenius (2015), pp. 43–47.
- 67.
Finnish Government Bill HE 1/1996 vp, p. 27.
- 68.
Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Latvia, the Republic of Lithuania, Republic of Hungary, the Kingdom of the Netherlands, Romania, the Republic of Slovenia, the Slovak Republic and the Kingdom of Sweden for a Council Framework Decision 2009/…/JHA of … on transfer of proceedings in criminal matters O.J. C219/7 (2009).
- 69.
On the added value of transfer of criminal proceedings within the EU, see Klip (2016), pp. 533–534.
- 70.
- 71.
See Swedish Government Bill 1999/2000:61, p. 61.
- 72.
See especially the ideals expressed in Wersäll (2006).
- 73.
See Asp (1998), pp. 34–37 for certain misgivings regarding the Nordic cooperation during the late twentieth century.
- 74.
- 75.
- 76.
Cf. Satzger (2019), p. 46.
- 77.
See, e.g., Suominen (2011), pp. 47–48.
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Helenius, D. (2021). Nordic and European Judicial Cooperation in Criminal Matters. In: Ervo, L., Letto-Vanamo, P., Nylund, A. (eds) Rethinking Nordic Courts. Ius Gentium: Comparative Perspectives on Law and Justice, vol 90. Springer, Cham. https://doi.org/10.1007/978-3-030-74851-7_8
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