As observed earlier on this blog, criminal ne bis inidem 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 →
As is becoming a tradition with our blog (albeit a bit late this year), we present to you our top 10 most read posts of the last year. We have had another good year of blogging behind us: more readers contributing to the content of the blog with 33 posters coming from approximately 14 different countries this year. Equally important is that readership is steadily increasing according to Google Analytics (plus: we now have almost 1600 email subscribers and 2400 followers on twitter). Most of you are from the UK, followed by the Netherlands, Belgium, Germany, the United States, Italy, Sweden, France, Ireland and Poland, respectively.
Keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, this is the 2015 list of most read posts of the year: Continue reading →
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 →