Transfer of Criminal Proceedings Between EU and Poland

Transfer of Criminal Proceedings Between EU and Poland

Transfer of criminal proceedings between EU states and Poland is a legal mechanism under which one state asks another to take over prosecution of a criminal case, in whole or in part, because that other state is better placed to conduct the proceedings effectively, lawfully, and proportionately. In practice, this concerns cross-border prosecution, allocation of jurisdiction, access to evidence, the place where damage occurred, and the location of suspects, victims, or corporate records.

For businesses and managers, this issue is not procedural only. A transfer may affect criminal exposure, defence strategy, language of proceedings, access to files, procedural deadlines, reputation risk, and parallel corporate investigations. It may also determine whether a case is handled by Polish authorities or by another EU jurisdiction with different evidentiary and sentencing practice.

What transfer criminal proceedings EU means in practice

In the EU, criminal conduct often has links to more than one country. This is common in fraud, VAT carousel cases, corruption, cybercrime, sanctions-related matters, document forgery, and offences involving cross-border financial flows. More than one state may claim jurisdiction at the same time [1][2].

A transfer of proceedings is not the same as extradition or a European Arrest Warrant. It concerns the question of which state should prosecute, not only where a suspect should be surrendered. It is also different from mutual legal assistance, which is focused on evidence gathering while the original state keeps the case [3].

In Poland, the legal basis may depend on the specific procedural stage, the applicable international instrument, and the state involved. At European level, a key reference point remains the European Convention on the Transfer of Proceedings in Criminal Matters, done at Strasbourg on 15 May 1972, although only some EU states are parties to it [4]. In parallel, authorities rely on frameworks for jurisdiction coordination, Eurojust support, and mutual legal assistance or mutual recognition tools [1][5].

When a cross-border prosecution may be transferred to Poland

A foreign authority may consider transferring proceedings to Poland when Poland has a stronger factual or legal connection to the case. Typical factors include:

• the suspect is a Polish national or resides in Poland,
• the company involved has its seat, branch, records, or key personnel in Poland,
• most evidence is located in Poland,
• the financial loss or market impact occurred in Poland,
• enforcement abroad would be difficult,
• parallel proceedings in several states create duplication or conflict.

Polish authorities may also seek transfer to another EU state where that state is better placed to investigate and prosecute. This can happen, for example, where the core conduct occurred outside Poland or where witnesses and financial trails are concentrated abroad.

How jurisdiction is assessed

There is no single automatic rule deciding jurisdiction in every criminal case. Authorities assess several factors and usually look for the forum that best serves the proper administration of justice. Eurojust has issued practical guidance on deciding which jurisdiction should prosecute [5].

The main criteria usually include:

1. place where the criminal conduct occurred,
2. place where the main harm occurred,
3. nationality or residence of the suspect,
4. location of victims, assets, and evidence,
5. procedural efficiency and trial fairness,
6. avoidance of double jeopardy under the ne bis in idem principle.

From a business perspective, forum selection can materially influence exposure. Some jurisdictions prosecute corporate structures more aggressively, use broader confiscation tools, or move faster in securing digital evidence and bank records. Early assessment of jurisdictional risk is therefore important in internal investigations and crisis response.

Procedure for transfer of criminal proceedings between EU states and Poland

The exact procedure depends on the treaty framework and the states involved. In broad terms, the requesting authority sends a formal request to the requested state, usually with a description of facts, legal classification, evidence collected, procedural status, and reasons why transfer is justified [4].

In practical terms, the process usually includes:

1. assessment of parallel jurisdiction,
2. contacts between prosecutors or central authorities,
3. review of admissibility under national law and any treaty basis,
4. decision whether to accept or refuse transfer,
5. continuation, opening, or adaptation of proceedings in the receiving state.

Where Poland receives a request, the Polish prosecutor or court will assess whether Polish law allows prosecution of the acts concerned and whether the transfer is consistent with procedural rules, jurisdictional principles, and the rights of the defence. Depending on the facts, domestic provisions of the Polish Code of Criminal Procedure and the Polish Criminal Code on territorial and extraterritorial jurisdiction may become relevant [2][6].

Three important exceptions and limits

Not every case can be transferred, and not every request will be accepted. Three exceptions are particularly important:

• No automatic transfer – even if several states have jurisdiction, none is obliged to take over proceedings unless the legal basis and domestic conditions are met.
• No bypass of defence rights – transfer cannot lawfully serve to avoid procedural guarantees, including fair trial rights under Article 6 of the European Convention on Human Rights and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union [7][8].
• No second prosecution after final judgment – if the ne bis in idem rule applies, a person cannot be prosecuted again in another Member State for the same acts after a final decision, subject to the conditions developed under EU law [1][8][9].

These limits matter in strategy. A transfer request should be tested not only for convenience of authorities but also for legality, proportionality, and procedural consequences.

Key risks for companies and executives

In white-collar matters, transfer of proceedings may affect much more than criminal liability of one person. It may trigger internal reporting duties, management board actions, audit obligations, insurer notifications, and document preservation protocols. It may also increase the risk of:

• simultaneous dawn raids or evidence requests in several countries,
• conflicts between employee interviews and criminal defence interests,
• disclosure issues involving legal privilege,
• freezing of assets or bank accounts,
• cross-border media pressure and reputational harm.

Where a company is exposed to cross-border prosecution, early legal analysis should cover both substantive criminal risk and procedural forum risk. This includes checking whether a transfer may be challenged, whether proceedings abroad should be coordinated with Polish defence steps, and whether the business should conduct a forensic review in parallel.

Why early legal assessment matters

Cases involving transfer criminal proceedings EU issues often develop quickly. Before a formal request is visible to the defence, authorities may already be coordinating through Eurojust, mutual legal assistance channels, or joint investigation teams [3][5]. For that reason, management should treat any cross-border criminal signal as a matter of immediate legal and compliance significance.

Kopeć & Zaborowski (KKZ) advises on criminal proceedings with an international element, including jurisdiction disputes, mutual legal assistance, and defence strategy where proceedings may move between Poland and another Member State. This is informational material, not legal advice.

If a criminal matter with an international element affects allegations of sexual offences, it is worth consulting the situation with a lawyer at an early stage. A legal assessment can help clarify jurisdiction, procedural risks, and possible next steps. More information and contact details are available at https://criminallawpoland.com/contact/.

FAQ – Transfer of Criminal Proceedings Between EU and Poland

1. What is the difference between transfer of proceedings and a European Arrest Warrant?

Transfer of proceedings decides which state will prosecute the case. A European Arrest Warrant is a surrender mechanism used to bring a requested person to another Member State for prosecution or enforcement of a sentence [10]. The two tools may appear in the same case, but they serve different functions.

2. Can Poland refuse to take over a criminal case from another EU state?

Yes. There is no automatic obligation to accept transfer. The decision depends on the legal basis, Polish jurisdiction, procedural conditions, and the specific facts of the case [4][6].

3. Does transfer of proceedings mean the suspect avoids prosecution abroad?

Not necessarily. It means the requested state may take over the case. If transfer is refused, the original state may continue proceedings and use other cooperation tools to obtain evidence or secure surrender.

4. What offences most often raise cross-border prosecution issues between Poland and other EU states?

Common examples include fraud, tax and VAT offences, corruption, cybercrime, money laundering, sanctions-related conduct, and offences involving cross-border transfers of funds or digital evidence.

5. Can a company challenge the choice of jurisdiction?

A company may raise legal arguments regarding jurisdiction, duplication of proceedings, procedural fairness, admissibility of evidence, and ne bis in idem. The available remedies depend on the stage of the case and the law of the state conducting proceedings.

6. Is Eurojust a court that decides where the case should go?

No. Eurojust is the European Union Agency for Criminal Justice Cooperation. It supports coordination between national authorities in serious cross-border crime. It facilitates communication and helps resolve jurisdictional issues, but it does not replace national courts or prosecutors [5].

7. Does ne bis in idem always block a second case in another EU state?

No. It applies only where the legal conditions are met, including identity of the material acts and the existence of a final decision. The assessment can be complex and depends on EU case law and the facts [1][8][9].

Bibliography

[1] Convention implementing the Schengen Agreement of 14 June 1985, in particular Articles 54-58.

[2] Act of 6 June 1997 – Criminal Code of Poland.

[3] Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000.

[4] European Convention on the Transfer of Proceedings in Criminal Matters, Strasbourg, 15 May 1972.

[5] Eurojust, Guidelines for deciding “Which jurisdiction should prosecute?”, revised 2016.

[6] Act of 6 June 1997 – Code of Criminal Procedure of Poland.

[7] European Convention on Human Rights, in particular Article 6.

[8] Charter of Fundamental Rights of the European Union, in particular Articles 47, 48 and 50.

[9] Court of Justice of the European Union case law on ne bis in idem, including case C-617/10, Åklagaren v Hans Åkerberg Fransson, and joined cases C-187/01 and C-385/01, Gözütok and Brügge.

[10] Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.