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. Continue reading