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.
The case M. (C-398/12, M., 5 June 2014) concerns a suspect of sexual violence (committed against a child) who was subject to parallel investigations in Belgium (where the crime was allegedly committed) and Italy (because the suspect is Italian and Italian law provides for extraterritorial jurisdiction in this case).
The Belgian authorities were faster than their Italian colleagues in prosecuting M. Nevertheless, the pre-trial chamber of the first instance Tribunal in Mons found that there was not sufficient evidence to bring M. to trial. Such a decision of non lieu prevents the Belgian authorities from prosecuting M. again for the same facts, unless new facts are discovered or new evidence becomes available.
After the Belgian non lieu, M. was subject to investigations for the same facts in Italy, following a complaint made by the victim to the Italian police. The judge examining the investigations asked the CJEU whether the preclusion to prosecute M. again in Belgium also had a transnational effect.
The CJEU answered that even a decision of non lieu (i.e. a finding that there was no ground to refer the case to a trial court because of insufficient evidence) is a decision on the merits of the case and bars further prosecution in another Member State. In other words, it is a final decision according to the EU legal framework on ne bis in idem, namely Article 54 of the Convention implementing the Schengen Agreement (CISA).
The CJEU, however, also observed that the case might actually be re-opened if there is new evidence. In particular, the Court reasoned as follows:
(a) According to the explanations relating to Article 50 of the Charter on the Fundamental Rights of the European Union (CFR), when ne bis in idem is applied within national borders, “the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR” (§ 37). The same strong link with the ECHR, and in particular Article 4 of Protocol No. 7 to the ECHR, has been recently highlighted by the CJEU in Åkerberg Fransson (C-617/10, 26 February 2013).
(b) According to the European Court of Human Rights (ECtHR), the possibility of re-opening a case in the event of further available evidence is not in contrast with the ECHR (see in particular ECtHR, Sergey Zolutukhin v. Russia, no. 14939/03, §108).
(c) The re-opening of a case “does involve the exceptional bringing of separate proceedings based on different evidence, rather than the mere continuation of proceedings which have already been closed”. This, according to the CJEU, “cannot affect the final nature of the order making a finding of ‘non-lieu’ at issue in the main proceedings” (§40).
(d) Nevertheless, if new proceedings need to be brought against the same person for the same facts, they need to be conducted in the same country where the non lieu decision was issued. The CJEU does not elaborate further on this point, but the Advocate General Sharpston, in her opinion, argued that it should not be “open to the courts in a second Member State to short-circuit the process (and the procedural guarantees offered to the defendant by the national law of the first Member State) by deciding to use what may (or may not) be ‘new’ facts and/or evidence to try that defendant” (§59).
In other words, only the court that issued the non lieu is in a position to assess what is ‘new’ evidence. On the contrary, not considering the non lieu as ‘final’ for the purposes of the EU ne bis in idem, allowing thereby another Member State to start new prosecutions, would decrease the protection of individuals granted by national law. This would clearly represent an obstacle to the freedom of movement and to the EU ambition to build up a common area.
Overall, this decision of the CJEU is not very surprising. It is, indeed, consistent with the logic of the previous case law of the CJEU (particularly before Spasic), emerging from the cases Gözütuk and Brugge (C-187/01 and C-385/01, 13 February 2003), where an out-of-court settlement was considered to be a final decision; Van Straaten (C-150/05, 28 September 2006) concerning an acquittal due to lack of evidence; Gasparini (C-467/04, 28 September 2006) related to the statute of limitations; Bourquain (C-297/07, 11 December 2008) related to a conviction in absentia; and Mantello (C-261/09, 16 November 2010) examining the provision on the ne bis in idem contained in the Framework Decision on the EAW.
The main idea underlying these judgments is that if a Member State considers an internal decision as final, another Member State must accept and trust the assessment on the merits of the case made in another EU country. Even in the few judgments where the CJEU did not consider a decision to be final, this same idea of mutual trust is clearly tangible. In Turansky (C-491/07, 22 December 2008), for instance, a decision was not considered final because the same national authorities were allowed to prosecute the suspect without any particular preclusion. In Miraglia (C-469/03, 10 March 2005) the decision to dismiss a case was not based on any determination on the merits of the case. In other words, if national authorities of a Member State are not prevented from prosecuting the suspect anew, it would be illogical not to allow another Member State to exercise its legitimate jurisdiction.
In contrast, a partially differing approach was followed some days before the CJEU handed down its judgment in M., namely in Spasic (C-129/14 PPU, 27 May 2014, a separate post on this blog will be dedicated to this case) where the CJEU, assessing the compatibility of the enforcement clause contained in Article 54 CISA with Article 50 CFR, focused rather on the need to prevent the impunity of offenders than on the reciprocal trust between EU countries.
In any case, the judgment in M. exposes how the ne bis in idem should not be – as it is now – the only regulatory mechanism for conflicts of jurisdiction in the EU. It risks, indeed, to transform the legitimate exercise of concurrent jurisdictions in a “race to prosecute”; as mentioned above, the first final decision in the EU prevents the other Member States to prosecute again (thus regulating, to some extent, the exercise of their jurisdiction).
The CJEU may increase the safeguards for suspects – as it has been doing for some ten years now – extending the concept of a ‘final decision’ triggering the application of the ne bis in idem principle. The application of this principle as such, however, cannot say anything on which Member State is best placed to exercise the jurisdiction in a common area. As observed by Advocate General Sharpston in her opinion on M.:
“At present, there are no agreed EU-wide rules on the allocation of criminal jurisdiction. The application of the ne bis in idem principle resolves the problem in a limited, sometimes an arbitrary, way. It is not a satisfactory substitute for action to resolve such conflicts according to an agreed set of criteria” (§51).
Furthermore, although at the moment it does not seem to be a priority for the EU legislature, the prevention and settlement of conflicts of jurisdiction, “as early as possible in the investigation” (see the Eurojust guidelines for deciding which jurisdiction should prosecute, p. 92 et seq.), is an important issue not only to reduce the risk of bis in idem, but also to ensure a better use of resources in a common area.