Tagged: Area of Freedom Security and Justice

The CJEU and the Spasic case: recasting mutual trust in the Area of Freedom, Security and Justice?

By Angelo Marletta

Ne bis in idem is a fundamental principle of EU criminal law, protecting citizens against double prosecution, even in transnational situations. Yet what is more, since the entry into force of the Lisbon Treaty, the ne bis in idem principle has become a yardstick of the systemic impact of the Charter of Fundamental Rights of the European Union (CFREU) on secondary EU law.

One reason for this is that the ne bis in idem principle in Article 50 CFREU differs in some aspects from the principle as laid down in the Convention implementing the Schengen Agreement (CISA), which introduced transnational ne bis in idem in the EU legal order. In particular, the CFREU neither provides for the “enforcement clause” (Article 54 CISA) nor for the exceptions foreseen by Article 55 CISA, such as the national security exception. According to the enforcement clause, the transnational ne bis in idem bars further prosecution provided that, if a penalty has been imposed: a) it has been enforced, b) it is actually in the process of being enforced or c) it can no longer be enforced under the laws of the Contracting State. Since none of these enforcement conditions are mentioned by Article 50 CFREU, the question arose, when the CFREU became a source of primary EU law, whether those limiting conditions in the CISA are compatible with the CFREU, taking into account that the CFREU is a lex superior and posterior.

In the Spasic case (C-129/14 PPU, 27 May 2014) the Grand Chamber of the Court of Justice (CJEU) provided a partial and to a certain extent striking answer to this question, as this contribution will show.   Continue reading

Mutual trust and transnational ne bis in idem: A further step made by the CJEU (C-398/12, M., 5 June 2014)

By Michele Simonato

Ne bis in idem is one of the key principles of EU criminal law. On the one hand, it is an important individual safeguard for suspects and convicted persons in the EU, as it protects against double prosecution and double punishment. On the other hand, it is the only mechanism – although imperfect and insufficient – to regulate conflicts of jurisdiction in the Area of Freedom, Security and Justice (AFSJ). A final judgment in one Member State indeed prevents another Member State from (further) prosecuting the same person (again) for the same facts.

Last June the Court of Justice (CJEU) issued an important judgment regarding the scope of the transnational protection against double jeopardy. The decision of the CJEU further expands the concept of ‘final decision’ triggering the ne bis in idem, confirming the validity of the previously consolidated trend which, on the one hand, recognises a strong importance to the mutual trust between Member States, and on the other hand acknowledges the inherent link between ne bis in idem and the freedom of movement in the EU.  Continue reading