68 Lex ET Scientia. Juridical Series
LESIJ NO. XIX, VOL. 2/2012
2.1. Legal framework
According to Article 54 CISA, “A person whose trial has been finally disposed of in one
Contracting Party may not be prosecuted in another Contracting Party for the same acts provided
that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced
or can no longer be enforced under the laws of the sentencing Contracting Party.”2
Article 55 provides that:
1. A Contracting Party may, when ratifying, accepting or approving this Convention, declare
that it is not bound by Article 54 in one or more of the following cases:
(a) where the acts to which the foreign judgment relates took place in whole or in part in its
own territory; in the latter case, however, this exception shall not apply if the acts took place in part
in the territory of the Contracting Party where the judgment was delivered;
(b) where the acts to which the foreign judgment relates constitute an offence against natio nal
security or other equally essential interests of that Contracting Party;
(c) where the acts to which the foreign judgment relates were committed by officials of that
Contracting Party in violation of the duties of their office.
2. A Contracting Party which has made a declaration regarding the exception referred to in
paragraph 1(b) shall specify the categories of offences to which this exception may apply.
3. A Contracting Party may at any time withdraw a declaration relating to one or more of the
exceptions referred to in paragraph 1.
4. The exceptions which were the subject of a declaration under paragraph 1 shall not apply
where the Contracting Party concerned has, in connection with the same acts, requested the other
Contracting Party to bring the prosecution or has granted extradition of the person concerned.
Article 58 provides:
“The above provisions shall not preclude the application of broader national provisions on the
ne bis in idem principle with regard to judicial decisions taken abroad.”
Mr Gözütok is a Turkish national who has lived for some time in the Netherlands where he
ran a coffee-shop in the town of Heerlen without the mandatory administrative authorisation. On 12
January and 11 February 1996 the Netherlands police searched the premises and seized certain
quantities of hashish and marijuana.3
The criminal investigations instigated following the above events ended on 28 May and 18
June 1996, after Mr Gözütok accepted the offer of settlement made by the Netherlands Public
Prosecutor's Office and paid the sums of three thousand Dutch guilders (NLG) and of seven hundred
and fifty (NLG).
On 31 January 1996 a German bank, at which Mr Gözütok held an account, had alerted the
criminal prosecution authorities in the Federal Republic of Germany to the fact that he was handling
large sums of money.
in Joined Cases C-187/01 a. C-385/01 Hüseyin Gözütok and Klaus Brügge, 4 German Law Journal No. 3 (1 March
2003), 253-262; Maria Fletcher, Some Developments to the ne bis in idem Principle in the European Union: Criminal
Proceedings Against Hüseyin Gözütok and Klaus Brügge, The Modern Law Review 2003, v.66, n.5, 769-780.
2 Article 54 CISA constitutes the principal legal basis for all cases analysed below. For opera tive reasons, I will
not repeat this article further in the study.
3 1 kg of hashish, 41 hashish cigarettes (joints) and 1.5 kg of marijuana in the first search, and 56 grammes of
hashish, 10 joints and 200 grammes of marijuana in the second.