Passive personality in the EU Member States
In Belgium, Title 1 of the Code of Criminal Procedure provides that Belgian courts have jurisdiction over crimes committed abroad against Belgian citizens, in particular when the maximum penalty under the law governing the place of the crime exceeds five years imprisonment. 1 The principle of passive personality requires double criminality and the presence of the accused on Belgian territory. The victim may also bring civil proceedings on this basis.
However, in the case of a violation of international humanitarian law, Belgian courts have jurisdiction when, at the time of the crime, a victim is either a Belgian national or a resident alien who has actually, regularly and legally been in Belgium for at least three years, or else a refugee who habitually resides in Belgium. This is the case even if the accused is in Belgium and even if the violations are not criminalised in the country where they were committed. 2 In these situations, however, prosecution may be brought only by the federal prosecutor, and not through civil action. 3 Again, because corporations are largely “rooted” in a particular place, and thus easier to find even if they relocate, they cannot operate in true confidentiality and the conviction of a corporation in absentia is less delicate than that of an individual.
In France, Article 113-7 of the French Criminal Code states that French Courts have jurisdiction over crimes and misdemeanours punished by imprisonment, committed by a French or foreign national outside the territory of the French Republic, when the victim is a French national at the time the offence took place.
Germany, Austria, Estonia, Greece and Portugal, inter alia, also provide for extraterritorial jurisdiction for all crimes (and misdemeanours) committed against their nationals. 4
Finland and Sweden extend the scope of passive personality jurisdiction to foreigners permanently residing in Finland and to foreigners domiciled in Sweden. 5 In Sweden, however, jurisdiction applies only to acts committed in an area lacking a State judiciary.
Italy includes stateless persons residing in Italy in its definition of “Italian citizen”, while limiting the exercise of passive personality jurisdiction to cases in which the accused is located in the country (as in Belgium for ordinary crimes and in Portugal).
In Spain, the principle of passive personnality is limited to specific crimes explicitely enumerated by the law 6 .
In Denmark, the principle of passive personality exists only in exceptional cases, and then it is extended to residents. 7
In the Netherlands, the principle of passive personality is recognised only when an international agreement binding the Netherlands contains an obligation to apply it. It has nevertheless been introduced for all serious violations of international humanitarian law. 8
Finally in the United Kingdom, the principle of passive personality for violations of particular intensity, such as treason or assassination is recognised.