Brussels, 15/12/2015 (Agence Europe) - Within the Schengen area, member states should no longer be able to claim the right not to apply the ne bis in idem principle, under which no one may be tried twice for the same crime, so that they can charge an individual for a crime for which he/she has already been found guilty abroad on the sole grounds that the crime was committed on its soil.
That was stated in the opinion delivered to the Court of Justice of the EU by Advocate General Yves Bot on Tuesday 15 December. The case in question, C-486/14, considers, for the first time, the validity of reservations to application of the ne bis in idem principle contained in the convention implementing the Schengen agreement (Article 55) in light of the EU Charter of Fundamental Rights (Article 50).
In this case, a Polish national was accused of using violence to steal a car in Germany. After being detained for questioning in Poland, he was prosecuted by the Polish authorities. However, because of lack of evidence and in the absence of the testimonies of the victim and a witness, both of whom were resident in Germany, the case was dismissed and the suspect released. He was later detained a second time, in Germany this time, where the authorities wanted to charge him for the same aggravated theft.
This situation led the German court to put two questions to the Court of Justice. Firstly, is the reservation entered by Germany pursuant to the ne bis in idem principle still valid in light of the Schengen acquis. If it is, the Polish national could be tried in Germany, even though the case brought against him in Poland was closed, because the crime with which he is charged was committed in Germany. Then, if the Court does not allow the German reservation, can the German court nonetheless try him since the criminal proceedings in Poland was terminated solely for lack of evidence.
In his conclusions, Advocate General Bot noted that the ne bis in idem principle is a key principle of criminal law, which seeks to protect people against arbitrary justice where they can be tried several times for the same crime under difference circumstances. Since there is no harmonisation in criminal law, mutual recognition becomes the overriding principle. This requires member states to have trust and confidence in one another whatever the differences in their respective national laws. If this principle is taken with the desire shown by the member states to create an area of freedom, security and justice, there is no other conclusion possible than to invalidate the reservation since its effect is to “empty the ne bis in idem principle of all its meaning”, Bot argued.
As for the second question, what has to be determined is whether the dismissal of the case in Poland should be seen as a “definitive ruling”, which would prevent any trial in Germany. In other words, a fair balance has to be found between mutual trust and confidence among the courts, a certain degree of right of scrutiny and the ne bis in idem principle. Advocate General Bot did not share the view of the European Commission and concluded that, in this case, the Polish authorities did not deal with the substance of the case and thus did not respect the fundamental rights of the victim. In his view, the German authorities should be authorised to open proceedings against the accused. (Original version in French by Jan Kordys)