Brussels, 27/05/2014 (Agence Europe) - The application of the “ne bis in idem” principle - whereby no individual may be prosecuted or punished twice for the same acts - can be limited by the condition that the first penalty has to have been fully enforced, the Court of Justice of the EU stated in a judgment (C-129/14) returned on Tuesday 27 May.
Zoran Spasic, a Serbian national, was sentenced in Italy to one year's imprisonment and a fine of €800 for fraud. He paid the fine but, instead of serving his prison sentence, he travelled to Austria, where he was subsequently imprisoned for another crime. As a result of a European arrest warrant issued against him by the German authorities, he was transferred to Germany, where he is currently being prosecuted for the same act of fraud as in Italy.
As he has already been definitively sentenced for this crime in Italy and as he has partially executed his punishment (the fine), can Spasic be prosecuted again in Germany? The European judges state that he can. The Convention Implementing the Schengen Agreement (CISA) provides that the “ne bis in idem” principle applies only if the penalty has been enforced or is currently being enforced by the state where it was handed down. According to the Court, as the individual only paid the fine, it cannot be considered that the penalty has been enforced in full, as the fine and the prison sentence handed down by the Italian court were two parts of the same penalty imposed as a principal penalty. At the same time, simply paying the fine is not enough to consider that the penalty has been enforced or is in the process of being enforced.
The right not to be put on trial or punished twice for the same crime is also enshrined by the Charter of Fundamental Rights (Article 50), but this does not make any reference to limits or conditions. Does this mean that the Schengen Convention (CISA) limits the scope of the Charter? In response to this second question put to the Court, the European judges this time replied in the negative. On the one hand, the Charter refers to the CISA and secondly, the CISA aims only to avoid a situation in which persons finally convicted in a member state go unpunished. This limitation to the “ne bis in idem” principle is therefore compatible with the Charter, they concluded. (JK)