Ne bis in idem in the EU: Two important questions for the CJEU (Opinion of the AG in C-486/14 Kussowski)

By Michele Simonato

As observed earlier on this blog, criminal ne bis in idem is a key issue for the development of an Area of Freedom, Security and Justice (AFSJ), particularly in order to ensure the freedom of movement of EU citizens by protecting them from multiple prosecutions in different Member States.

In the last years the CJEU has developed an autonomous transnational concept of ne bis in idem (i.e. independent from the national understanding of this principle) based upon the provisions contained in Articles 54 et seq. of the Convention Implementing the Schengen Agreement (CISA), and the principle of mutual trust between Member States. The ‘transnational’ EU ne bis in idem is also a fundamental right enshrined in Article 50 Charter of the Fundamental Rights of the European Union (Charter or CFREU), thus part of the primary law of the Union.

This comment focuses on the opinion delivered last December by the Advocate General Yves Bot in Kussowski (C-486/14, 15 December 2015, not yet available in English). After the Spasic case (C-129/14 PPU, 27 May 2014, commented by Marletta on this blog), this new case offers the CJEU another opportunity to clarify the relation between Article 50 CFREU and the CISA provisions, and thus the real added value of the Charter. Furthermore, the Court is called upon to indicate to which extent mutual trust should shape the relations between national criminal justice authorities.

The Facts

The case concerns Mr Kussowski, a Polish citizen who, after allegedly having committed a crime in Germany, drove back to Poland, where he was arrested for other reasons. At the same time, the Polish authorities, having legitimate jurisdiction, opened an investigation for the facts committed in Germany.

In order to proceed with the investigations, the Polish prosecutor contacted the German colleagues, who transmitted copy of their file on Mr Kussowski. The Polish authorities, however, decided to drop the case and not to prosecute him on the basis of the insufficient available information. At this point, it is worth pointing out that: a) such a decision is considered to be ‘final’ in Poland after six months (i.e. Mr Kussowski cannot be investigated again for the same facts in Poland) unless new ‘essential evidence’ against the suspect is uncovered (§12-13); b) the Polish authorities – apparently without requiring specific assistance in that regard – based their decision to drop the case, inter alia, on the fact that it had not been possible to hear witnesses residing in Gemany, including the victim.

Some years later a prosecutor in Hamburg intended to prosecute Kussowski in Germany for the same facts already considered in Poland, on the basis of two considerations:

  1. Article 55(1)(a) CISA allows a country (like Germany) that, when ratifying CISA, made an official declaration in that respect, not to be bound by Article 54 in case ‘the acts to which the foreign judgment relates took place in whole or in part in its own territory’;
  2. The Polish authorities did not really assess the merits of the facts, since they dropped the case due to the insufficiency of evidence and – most importantly – without conducting detailed investigations (in particular, without triggering all the available cooperation mechanisms in order to hear witnesses abroad).

The Tribunal in Hamburg, therefore, asked the Court to clarify whether:

  1. The relevant provision of Article 55 is to be considered valid in light of the primary law of the Union, namely Article 50 CFREU;
  2. The decision of the Polish prosecutor should be considered ‘final’, thereby suitable to trigger the EU ne bis in idem.

The Opinion of the Advocate General

 Both questions are crucial for the development of a consistent EU case law on the principle of ne bis in idem. Whereas the first question is addressed for the first time to the CJEU (in Spasic the validity of the so-called ‘enforcement clause’ provided by Article 54 CISA was challenged), the second question touches upon an aspect already considered by the Court on several occasions. The Court’s upcoming judgment may thus mark a new turn in EU criminal law.

This explains why the opinion of Advocate General Bot merits close attention. In short, he puts forward the following main arguments:

(1) Article 55 CISA should be considered no longer valid in the light of the CFREU

 Article 55 CISA represents a limitation to a fundamental right recognised by the Charter (Article 50); and according to Article 52 CFREU, such limitations must be proportionate, i.e. they ‘may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

The Advocate General recalls that the ne bis in idem in the EU is also essential to ensure the freedom of movement of citizens (otherwise they could fear another prosecution in other Member States) and it must work even when national systems are different and not harmonised. This is exactly the type of situation where the principles of mutual recognition and mutual trust come in and play a crucial role. In that regard, the limitation provided by Article 55 would not only risk emptying the content of ne bis in idem principle, but it is neither necessary, nor useful to ‘meet objectives of general interest recognised by the Union’.

To justify such a conclusion, the Advocate General focuses on the controversial interpretation of the concept of ‘same acts’ (Article 54 CISA) and same ‘offence’ (Article 50 CFREU). In his view, the case law of CJEU does not merely include in these concepts the material acts, but also their legal significance (§54), thus incorporating in the definition of ‘same acts’, for example, also the intention (§56-57).

Accordingly, he elaborates on the example – given by the German government – of a violent crime already punished in a Member State, for which another Member State provides, in the definition of the offence, an additional element based on the motive (e.g. the apology of Nazism). Since the ‘second’ Member State considers that specific motive as an element of the crime, the same material conduct could be considered as an offence different from the one prosecuted in the first Member State (i.e. the second Member State would be allowed to prosecute again the perpetrator). However, since the two offences are ‘partially the same’, the perpetrator, if convicted again, should serve only the higher sentence (§66). In this way, the Advocate General stresses how the interpretation of ‘idem’ already allows national authorities to take into consideration substantial differences between offences (‘le respect de la différence substantielle des infractions’, §67).

In other words, according to the Advocate General the interpretation of one of the core elements of the ne bis in idem (the ‘same acts’) already leaves quite broad possibilities for national authorities not to consider the material acts as the same offence, thus not necessarily triggering the protection of ne bis in idem. Adding another limitation, like the one of Article 55 CISA, would not respect the essence of Article 50 CFREU.

(2) The decision of the Polish prosecutor should not be considered ‘final’ according to Article 50 CFREU and Article 54 CISA

The CJEU has already clarified on several occasions that a decision considered final in the Member State where it was issued, should be considered final in the whole EU, provided that the merits of the case have been examined (e.g. Miraglia, C-469/03, 10 March 2005). In this case, Mr Kussowski exercised his right to silence; furthermore, the Polish authorities did not hear any witness in order to clarify the contradictory victim’s statements. In this sense, they did not really examine the merits of the case. They could, at least, have requested the cooperation of German authorities in order to ensure the testimony of the persons who were in that country.

In other words, it is true that the EU ne bis in idem is based on mutual trust. However, this does not imply a blind trust between Member States, especially when there are objective and evident issues (‘dans des cas où, objectivement, des questions se posent de manière évidente’, §76). Not to give the other Member State the possibility to verify whether the conditions for ne bis in idem are actually fulfilled, would, according to the Advocate General, affect mutual recognition and, moreover, risk undermining the rights of victims in the EU.

 Some remarks

The answer to the first question suggested by the Advocate General definitely goes in a more convincing direction than the one followed in Spasic, where the CJEU upheld the validity of the ‘enforcement clause’ of Article 54 CISA. Ruling out the exceptions to the ne bis in idem (based on national interests) would certainly contribute to the development of the AFSJ.

On the other hand, the CJEU might disagree on the Advocate General’s reasoning to justify the answer, where it is argued that the interpretation of the concept of same ‘act’ and ‘offence’ already leaves much room to national authorities to consider the ne bis in idem not applicable. On several occasions the Court has affirmed that the only relevant criterion to determine what idem is, is the identity of the material acts, rejecting the criteria based on the legal qualification of the acts or the legal interests protected. They would indeed create an obstacle to the objectives of the ne bis in idem, in particular the freedom of movement in the EU (Van Esbroeck, C-436/04, 9 March 2006, §36; Gasparini, C-467/04, 29 September 2006, §54; Van Straaten, C-150/05, 28 September 2006, §48; Kretzinger, C-288/05, 18 July 2007, §34; Kraaijenbrink, C-367/05, 18 July 2007, §36). The view of the Advocate General, whereby a different legal element – concerning for example the intention of the perpetrator – could entail that the ‘acts’ (Article 54 CISA) or the ‘offence’ (Article 50 CFREU) are not the same for the purpose of ne bis in idem, is not entirely persuasive as regards its coherence with the previous CJEU case law. Furthermore, it would risk undermining the cross-border protection offered by the EU ne bis in idem.

The answer to the second question will be probably even more challenging for the CJEU, despite the fact that similar questions have been addressed before by the Court. One can indeed understand that mutual trust can be outweighed by other interests when a final decision does not consider the merits of the case. However, I see a difference between the prior case law of the CJEU dealing with the ‘merits of the case’ – namely Miraglia – and Kussowski. In Miraglia, the first decision was of a merely procedural nature, and there had been ‘no assessment whatsoever of the unlawful conduct with which the defendant was charged’ (§34). In Kussowski, the Polish decision was to some extent based on the merits of the case: the Polish prosecutor could conduct investigations and look into the file, and concluded that there was not enough evidence. Evidence is, indeed, nothing short of the merits of the case.

One may well understand the concerns related to this specific case, since Polish authorities probably could have done more (e.g. request international cooperation). However, is another Member State in the position to assess that? Opening a breach in the ne bis in idem by loosening the concept of the ‘merits of the case’, would give some possibilities to other national authorities to control the exercise of investigative powers in other Member States: would the same possibility be recognised in case a Member State, for example, did not intercept enough conversations or monitor enough bank accounts? What would be the limit of such a control?

Finally, the argument based on victims’ rights does not seem to be decisive, in particular when it is argued that mutual recognition and mutual trust should not jeopardise victims’ rights (§30). This case concerns the scope of the ne bis in idem, whose multi-faceted rationale does not include the protection of victims’ rights and interests. The Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime – though the opinion mentions only its predecessor, the Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings – aims to ensure that certain victims’ rights are recognised and respected in every country. However, it does not seem to suggest that, if such rights are not correctly protected, new criminal proceedings can be initiated in another Member States.

Probably some room to deny the applicability of the ne bis in idem could be rather found in the ‘final’ character of the decision, rather than in the nature of the decision (i.e. whether or not it involves an appreciation of the merits of the case). To further elaborate on this, it would be necessary to analyse in more detail the Polish system (which clearly considers that prosecutor’s decision as final, §19). However, does a decision to close a criminal case, which is taken by the authority conducting the investigation, really constitute res judicata if this same authority can also re-open the case (apparently without requesting any authorisation) simply when ‘new’ elements are uncovered? Or, for example, should we rather consider ‘final’ only the decisions which definitively preclude the possibility to prosecute a person for the same facts?

Arguing along this line would mean that the CJEU should start developing a new EU concept of final character of a decision, somewhat different from the current approach based on mutual recognition and mutual trust. This may seem quite far-reaching. Nevertheless, is the recognition of the possibility to challenge the investigations conducted in other Member States less threatening to the aforementioned principles?

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