Brussels, 29/06/2016 (Agence Europe) - On Wednesday 29 June, the Court of Justice of the EU ruled that in the Schengen area the ne bis in idem principle (that a person cannot be judged twice for the same deeds) cannot protect a suspect against proceedings in a Schengen state because another Schengen state has terminated previous criminal proceedings for the same acts without a detailed investigation.
The judges followed the opinion of Advocate General Yves Bot (see EUROPE 11454) in this case (C-486/14) which involved a Polish national who stole a car in Germany with the use of violence. Arrested in Poland, he was prosecuted by the Polish authorities. However, with lack of evidence and absence of testimony from the victim and a witness, both living in Germany, the legal proceedings were closed (dismissed) and the person concerned was released. He was then arrested again, in Germany, where the authorities wanted to prosecute him for the same acts of aggravated theft.
The German authorities have the right to do this, the Court decided. The judges started from the premise that the Polish public ministry had terminated its criminal proceedings, which under Polish law cannot be re-opened. The proceedings in Poland were thus definitively closed. However, this cannot be described as a definitive decision for the application of the ne bis in idem principle because no detailed investigation was conducted, according to the Court - which points the finger at the lack of hearing of the victim and of the potential witness.
This is how the Court held that applying the ne bis in idem principle to a decision by public authorities to close a case without any detailed assessment of the unlawful conduct of the accused would clearly go against the very purpose of the area of freedom, security and justice, which is to fight against crime, and would risk calling to question the mutual trust between Schengen states.
This case also asked the question for the first time of the validity of reservations to applying the ne bis in idem principle, provided for in the convention implementing the Schengen Agreement (Article 55). Germany in particular uses this reservation, which provides for this principle not being able to be applied when the deeds targeted by the foreign judgment took place either fully or partly on its territory. While the advocate general suggested invalidating this reservation, the Court did not in the end refer to the question. (Original version in French by Jan Kordys)