Brussels, 07/02/2014 (Agence Europe) - Litigants to whom a final judgment of no case to answer has been handed down in one member state of the EU cannot be criminally prosecuted for the same case in another member state by virtue of the principle of “ne bis in idem”. However, if new charges are brought, the procedure can be reopened and, if this is the case, it must be opened in the state where the non-suit decision was returned.
This is the interpretation suggested to the European judges by Advocate General Eleanor Sharpston in conclusions returned on 6 February in answer to questions put by an Italian court (case C-398/12 M). This court had taken criminal proceedings against an Italian national resident in Belgium over accusations of sexual violence in Belgium after the accused had been given a judgment of no case to answer over the same issues one week before by the Belgian Cour de cassation (the two investigations were being carried out in parallel). The Italian court asked the European Court to interpret the Convention implementing the Schengen Agreement on this point as to whether: - a person who has received a final judgment of no case to answer in one member state can be considered to have been definitively judged such that they can no longer be prosecuted over the same case in another country (in application of the principle of “ne bis in idem” referred to in Article 54 of the said Convention) ; - the procedure can be reopened in the latter state in the event that new evidence is presented.
In her response, Sharpston takes the view that, in line with Belgian law, the decision of no case to answer made by the Cour de cassation had had the effect of ending public action and ruling out any continuation of criminal proceedings for the same case in Belgium, protecting the accused from procedures in that country. However, she observes that a final judgement of no case to answer could be considered not to be definitive if it is possible to reopen the procedure in light of new charges. The Convention does not specify whether the “ne bis in idem” principle applies for the other member states when such a possibility exists. However, Sharpston argues that not applying it would denude the principle itself and the protection it provides of any substance, as new charges can always come to light. She said that the triggering of the “ne bis in idem” principal as a result of a judgment in one member state (Belgium) can have the effect of ending public action in another country (Italy), even if the jurisdiction of that country had reached a different conclusion as to the probative value of evidence which is essentially the same. The reopening of proceedings in the event of new charges coming to light is not, however, ruled out. If the Italian public ministry makes the evidence in its possession available to its Belgian colleagues, these colleagues would then be in a position to assess the said charges and decide whether there were grounds for reopening proceedings in Belgium. However, the Advocate General states that any new proceedings against somebody who has been given a final judgment of no case to answer must be undertaken “in the member state on the territory of which this decision was made”, in this case Belgium, and the Italian courts cannot short-circuit the process by deciding to use what may or may not constitute new charges against the litigant. (FG/transl.fl)