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3 Persp. Bus. L.J. 1 (2014)

handle is hein.journals/perbularna3 and id is 1 raw text is: THE ORGANIZATION OF JURISDICTION IN EUROPEAN UNION PERSPECTIVE Lecturer Mihaela AGHENITEI1 Abstract Nowadays, universal jurisdiction is the favorite technique used to prevent impunity for international crimes and it is one of the most effective methods to deter and prevent international crimes by increasing the like hood of prosecution and punishment of its propagators. In regard to the defendants' rights, the European Union states consider applicable all the rights that are necessary to assure that the trial is equitable and expeditious. There is no exception to the right to a fair trial. So, a defendant who is being prosecuted on the basis of the universality principle can rely on all the procedural rights provided for the Convention on Human Rights and the domestic code of criminal procedure without any restrictions. In Germany, the Federal Constitutional Court, in a case concerning genocide committed abroad, declared expressly that no special criminal proceedings must be provided for specific crimes. Key words: universal jurisdiction , human rights , European Union , criminal procedure JEL Classification: K14, K33 According to the principle of mandatory prosecution who prevails in many countries such Belgium, Croatia, Hungary, Spain, Sweden and Turkey, the criminal prosecution authorities are obliged to initiate the measures necessary for prosecution when they gain knowledge or form a suspicion of the commission of a criminal offence. This means that they have no discretion as to whether to initiate criminal proceedings; they are deluged to take the necessary investigative measures. No particular national rules are set up with regard to the exercise of prosecutorial discretion as far as crimes are concerned that are subject to universal jurisdiction. In Belgium the Public Prosecutor (procureur federal) has a duty to ask preliminary judge to investigate, if a complaint is submitted, with exception. In contrast, the principle of discretionary prosecution allows prosecuting authorities to refrain from prosecution in certain cases. Regarding the prosecution of extraterritorial crimes, some countries recognize specifically the principle of discretionary prosecution. The application of a pure universal jurisdiction can cause a lot of problems. For example, due to the lack of restrictions, the prosecution of crimes subject to universal jurisdiction can create political problems. Also, the risk of overstretching national investigative resources exists in those cases in witch it appears to be very unlikely that a criminal trial over be completed.2 The principle of discretionary prosecution can solve some of these problems, because the prosecutor can refrain from prosecutor, taking into account the political ramifications of the case or the case or the existence of prima facie evidence. Concerning the principle of universal jurisdiction, a distinction can be made between two systems. First, the prosecution of crimes committed abroad in general depends on the approved of the Prosecutor General, exercising his discretion, such in Croatia and Finland. In Hungary, the Attorney General has the right to exercise discretionary power in deciding whether or not to initiate proceedings based on universal jurisdiction. In some countries there are guidelines for the prosecutor on how to make use of his discretion. For example, in Finland, the prosecution order procedure is needed, because it enables a case-by-case consideration of whether prosecution in Finland is appropriate. The consideration must take into account factors such as the sovereignty of other states and possible conflicts of multiple 1 Mihaela Aghenitei - ,,Dunarea de Jos University, Associate Researcher at Institute of Legal Research - Romanian Academy, maghenitei@gmail.com 2 Florian Jessberger, National Reports (CD Rom annexe), at XVIII-th International Congress of Penal Law (Chine. -2007)

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