Locus Delicti and Criminal Jurisdiction

Abstract

A state's rules of criminal jurisdiction determine the (spatial) scope of its criminal law. Such rules become increasingly important as criminal offences gain an international dimension. Every state has its own rules of criminal jurisdiction. As they form the outcome of considerations involving both legal and political aspects, it is hardly surprising that there are substantial differences between states. Irrespective of their differences, however, these rules are commonly classified according to the so-called ‘principles of jurisdiction’. This classification is based on the connection between the particular offence in question and the state claiming jurisdiction regarding this offence. With regard to the territoriality principle this connecting point forms the locus delicti: the jurisdictional requirement is that the offence is committed within the territory of the state (hereafter: intraterritorial locus delicti) claiming jurisdiction. The other principles are principles of extraterritorial jurisdiction because they apply when the offence is supposed to have been committed outside the country's territory (extraterritorial). The active personality principle is based on the nationality of the offender; a state claims jurisdiction over crimes committed by its own nationals. According to the passive personality principle, the nationality of the victim of the offence provides the basis for the establishment of jurisdiction. The protective principle applies if the extraterritorial offence injures or endangers a certain legal interest to which the state ascribes a particular national importance. With the universality principle there is also a particular legal interest involved, yet, different from the one applying with the protection principle, the interest here is of a universal nature. The differences between jurisdictional systems of states are found in the different elaborations of these principles. The active personality principle, for example, might be applied to all offences, but also to a limited group of offences. Sometimes, the applicability of this principle is subjected to the requirement that the offence in question is punishable according to the law of the state in which the offence is committed (lex loci delicti). In addition, the territoriality principle, which today is considered a jurisdictional starting-point for any state, is interpreted in different ways as each state interprets the locus delicti concept related to this principle in its own way.