In Case C-164/22, the Court of Justice of the EU (CJEU) ruled on Thursday, 21 September, that the prohibition of double jeopardy does not appear to preclude the execution of a European Arrest Warrant (EAW) for the person responsible for a fraudulent pyramid scheme in Spain and Portugal, as the facts on which the convictions were based do not appear to be identical.
Fraudulent scheme
In fact, a Spanish national was chairman of the board of directors of a Portuguese company that was wholly owned by a Spanish company, of which he was also chairman of the board. These companies marketed investment products that concealed a fraudulent pyramid scheme. Following the intervention of the Spanish and Portuguese judicial authorities in 2006, these companies closed down, leading to financial losses for investors.
Convicted in Spain—where he is serving his sentence—in 2018 and in Portugal, this person was the subject of an EAW issued by the Portuguese authorities. The National High Court of Spain refused [to execute] the EAW and ruled that the second sentence must be served in Spain.
However, the accused appealed, arguing that he should neither be extradited nor serve the Portuguese sentence, since the facts on which both judgments are based are the same. He thus alleges infringement of the principle in the EU Charter of Fundamental Rights that prohibits being prosecuted twice for the same offence.
Separable acts
The CJEU points out that, in order to be considered identical, the facts must “involve the same perpetrator and [be] inextricably linked together in time and space”. The classification of the offences under the law of the Member States is not taken into account.
Although it is up to the National High Court of Spain to decide [the matter], the CJEU does not consider the facts to be identical. In fact, the accused reproduced his activity through two separate legal entities. Furthermore, the CJEU notes that each of the two courts’ judgments refers to fraudulent activities carried out in [that court’s] Member State to the detriment of [that Member State’s] residents.
The judgment: https://aeur.eu/f/8oz (Original version in French by Hélène Seynaeve)