Determining a court’s extraterritorial jurisdiction
Territoriality remains the guiding principle of criminal jurisdiction. 1 Jurisdiction is primarily granted to the courts of the place where the offence occurred, regardless of the severity of the offence and the nationality of the protagonists involved. 2
The courts of places where unlawful acts occur (mostly developing countries) generally fail to prosecute “european” companies suspected of human rights violations. The principle of territoriality, however, may still be useful in the context of the problem at hand.
Particularly in France and Belgium, territoriality is closely associated with the ubiquity principle which is relevant for offences committed in part in a third country. In accepting the ubiquity principle, France makes no distinction between the place where the offence is initiated and the place where the damage occurs. 3 Belgian law and doctrine hold that the Belgian courts have jurisdiction to try offences which are only partially carried out in Belgium. 4 “It is sufficient for one of the material elements (not purely intentional) to be carried out on the Belgian territory. There is no requirement that the offence be committed entirely in Belgium, or in the case of an offence which could have led to harm, that the harm occur.” 5
In addition to that of territoriality, six “derogatory” principles of jurisdiction can be identified in the various national laws: 6
- the principle of active personality (the State has jurisdiction to judge crimes committed by its nationals) 7 ;
- the principle of passive personality (the State has jurisdiction to judge crimes committed against its nationals) 8 ;
- the principle of universality, applicable only to the most serious crimes, (perpetrators may be tried by any State in which they eventually set foot, 9 regardless of the location of the crime and the nationality of the perpetrator or the victim); 10
- the principle of the flag (the State has jurisdiction to apply criminal law to aircraft and ships flying the national flag) 11 ;
- the protective principle (the State has jurisdiction to judge crimes deemed to constitute a threat to fundamental national interests) 12 ; and
- the principle of representation. 13
The following discussion focuses solely on the principles of active and passive personality and the principle of universality, the most commonly invoked sources of extraterritorial jurisdiction in the EU Member States.
There is no doubt that companies and/or their directors can be tried on these various bases of jurisdiction for criminal acts committed abroad. A criminal court hearing a case will apply the criminal law of its State, while still taking into account that prosecuting the case requires the alleged acts to be criminalised in the State in which they were committed (the principle of double criminality, see below).