The Court of Justice of the EU ruled, on Wednesday 12 May (Case C-505/19), that the ‘ne bis in idem’ principle, which prohibits the duplication of proceedings for the same acts, may preclude the arrest, in the Schengen area and in the EU, of a person who is subject of an Interpol notice.
This is particularly the case “where the competent authorities are aware of a final judicial decision, taken in a State that is a party to the Schengen Agreement or a Member State, which establishes that that principle applies”, the Court stressed in a statement.
The judgment answers a question put by the Verwaltungsgericht Wiesbaden on the case of a German national who had already been tried for acts in Germany and had entered into an agreement with the German justice system and disputed that he could be arrested and retried for the same acts because of an Interpol notice concerning him.
Interpol issued a red notice in 2012 at the request of the United States for a German national with a view to his possible extradition. Where a person who is the subject of such a notice is located in a State affiliated to Interpol, that State must, in principle, provisionally arrest that person or monitor or restrict his or her movements.
However, an investigation procedure concerning the same facts as those at the origin of this notice had already been initiated against this person in Germany and definitively closed in 2010 after the payment of a sum of money by the person concerned.
The Bundeskriminalamt (Federal Criminal Police Office) therefore informed Interpol that it considered the ne bis in idem principle to be applicable due to this earlier procedure. This principle, enshrined in the Convention implementing the Schengen Agreement and the Charter of Fundamental Rights of the EU, prohibits a person whose trial has been finally disposed of from being prosecuted again for the same offence. But the BKA (German National Central Bureau for Cooperation with Interpol) did not withdraw the notice.
In 2017, the complainant therefore brought an action against Germany before the Administrative Court in Wiesbaden, requesting the withdrawal of the red notice, which also violated his right to freedom of movement, as he risked being arrested anywhere in the Schengen Area.
He also argued that the processing of his personal data appearing in the red notice was contrary to the Directive, which concerns the protection of personal data in criminal matters.
In its judgment, the Court held that the Treaty and the Charter must be interpreted as not precluding the provisional arrest of a person who has been issued a red notice by Interpol at the request of a third State “unless it is established, in a final judicial decision taken in a State that is a party to that agreement or in a Member State, that the trial of that person in respect of the same acts as those on which that red notice is based has already been finally disposed of by a State that is a party to that agreement or by a Member State respectively”.
The Court notes, however, that where the application of the ne bis in idem principle remains uncertain, provisional arrest may be an essential step in order to carry out the necessary checks while avoiding the risk that the person concerned may abscond.
On personal data, the Court considers that the processing of personal data in the red notice does not violate the Directive, as the use of the data may serve legitimate purposes; but again, it must stop, if the ne bis in idem principle is applicable.
Link to the judgment: https://bit.ly/3obySyO (Original version in French by Solenn Paulic)