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.  

1. The facts and the preliminary questions

Mr Spasic is a Serbian national who, at the time of the preliminary ruling before the CJEU, was being prosecuted in Germany for a fraud committed in Italy against a German national. He had already been convicted for this fraud and sentenced to one year of imprisonment and a fine in Italy. At the time of the German trial, the Italian conviction had become final and executable. However, only the fine had been spontaneously paid by Mr Spasic, the custodial part of the sentence had remained unexecuted.

Two preliminary questions were submitted by the German judge to the CJEU. First, is the enforcement clause of Article 54 CISA compatible with Article 50 CFREU? Second, is this condition satisfied by the execution of only one part of the sentence, when it is composed of two independent penalties?

2. Does security trump trust?

In order to answer to the first question, the CJEU qualified the CISA enforcement condition as a “limitation” of the right enshrined in Article 50 CFREU and performed a proportionality analysis thereof, according to Article 52 §1 CFREU and the “Hauer approach” (C-44/79, Hauer, 13 September 1979). The Court decided that the limitation was indeed proportionate, relying on the following arguments:

– The enforcement condition of Article 54 CISA does not call into question the essence of ne bis in idem as such as it is laid down in Article 50 Charter (§58).

– The condition pursues an objective of general interest which is innate in the Area of Freedom Security and Justice (AFSJ), namely preventing the impunity of persons definitively convicted and sentenced (§§60-63; see also C-288/05, Kretzinger, 18 July 2007, §51).

– Finally, the condition is necessary, since none of the less restrictive alternatives provided by the instruments of mutual recognition (such as the Framework Decision 2002/584/JHA on the European Arrest Warrant (FD EAW) or Framework Decision 2008/909/JHA on the mutual recognition of custodial sentences for their cross-border enforcement) could be “equally effective” in ensuring the aim of preventing impunity.

Turning to Mr Spasic’s situation, the Court, then, apparently considered the possibility of starting a second prosecution for the same facts as more effective in serving the security goal of the AFSJ than the resort to the EAW or to the cross-border enforcement of penalties by means of mutual recognition. What is more, the Court affirmed that, with a mutual recognition instrument, there is an inherent risk of impunity in the discretionary choice of the Member State which delivered the final decision to effectively enforce it or not (§69).

This argument is actually quite surprising, because the CJEU seems to reconsider the role and importance of mutual trust, which has been a theoretical tenet of the case law on the EU ne bis in idem principle ever since the beginning, and which is also one of the cornerstones of the AFSJ. By contrast, the view of the Advocate General (AG) appears much more in line with the traditional philosophy of mutual trust in the EU context: even if Member States have discretion about the means to execute the sentences delivered by their courts and even if EU law does not oblige a Member State to issue an EAW in order to prevent impunity, Advocate General Jääskinen recalls that “the principle that every penalty must be executed forms part of the rule of law” whose respect is a common feature to all the Member States of the Union (§102, referring to the opinion of the AG). Under this more “trustful” approach, the “necessity” of the enforcement condition would have probably received a different weight in the balance. 

3. Composed penalties and the enforcement condition: Is a piecemeal approach to ne bis in idem a reasonable solution?

As to the second question, the CJEU concluded that the execution of only one part of the sentence (in this case, Mr Spasic’s fine) does not satisfy the enforcement condition under any of its forms (§§83-84).

This conclusion of the Court is quite surprising too because, while it is indisputable that a partial execution cannot be regarded as a full enforcement, it is also true that Article 54 CISA provides for the hypothesis of the penalty being “actually in the process of being enforced.”

Affirming that a partial execution of an autonomous part of a composed penalty can neither fulfil the “enforcement process”, the CJEU considerably stretched the scope of the condition and limited the protection offered by the ne bis in idem principle.

Although in Spasic the partial execution concerned the financial component of the composed penalty, an indiscriminate application of the Court’s assumption could undermine the protective function of ne bis in idem, which constitutes, in terms of proportionality, part of its essence.

The finding of the Grand Chamber, indeed, should be tested in a reverse situation, where a custodial sentence has already been served but the fine has not yet been paid. Could an individual, in this hypothesis, be subject to another prosecution and, eventually, to a second, even longer, period of imprisonment for the very same facts? Could such a result be considered “proportional” in the context of an Area of Freedom, Security and Justice?

4. Some concluding remarks.

In conclusion, the Spasic judgment places a strong focus on the duty to prevent the impunity of criminals within the AFSJ and, apparently, shifts the balance of ne bis in idem towards a more “security-oriented” approach.

In doing so, the CJEU seems, on the one hand, to endorse a new (be it a more “mistrustful” or, from a different standpoint, perhaps more “realistic”) understanding of mutual trust and, on the other hand, to overlook the protective rationale of ne bis in idem and the logic of its previous case-law.

One may argue that this logic has been restored in the later M. case (C-398/12, M., 5 June 2014, which has been commented on by Simonato on this blog). But the full effect of Article 50 of the CFREU on the pre-Lisbon acquis on ne bis in idem, remains, however, to be further explored and discussed.

In Spasic, indeed, the Court only tackles the impact of the CFREU on the enforcement clause without examining, for example, the exceptions provided by Article 55 CISA, whose heterogeneous rationales are not directly aimed at preventing impunity and could end up in a different balance with the goals of the AFSJ.