The 'ne bis in idem' principle in the case-law of the european court of justice (ii). The 'final judgment' and 'enforcement' issues

• Author: Norel Neagu
• Position: Researcher, Centre for Legal, Economic and Socio-Administrative Studies, 'Nicolae Titulescu' University, Bucharest, Romania
• Pages: 67-87

Norel Neagu

67

LESIJ NO. XIX, VOL. 2/2012

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THE “NE BIS IN IDEM” PRINCIPLE IN THE CASE-LAW OF THE

EUROPEAN COURT OF JUSTICE (II).

THE ‘FINAL JUDGMENT’ AND ‘ENFORCEMENT’ ISSUES

Norel NEAGU∗

Abstract

Two major events occurred in the recent years have triggered a series of cases in the field of

criminal law, having transnational dimension and requiring an identical interpretation of the

European law in the Member States. The first one is the “communautarisation” of the Schengen

Aquis. The second one is the extension of the jurisdiction of the European Court of Justice over the

(former) third pillar (Police and Judicial Cooperation in Criminal Matters). As a result, several

cases were referred to the European Court of Justice for the interp retation, inter alia, of the

dispositions of the Schengen Convention dealing with criminal matters. This article gives a general

overview of the case-law of the European Court of Justice in the field of ‘ne bis in idem’ principle,

shortly presenting the legal framework, the facts, the questions addressed to the Court by the

national jurisdictions, the findings of the Court, as well as some conclusions on the interpretation of

the principle. In this second study on the ‘ne bis in idem principle’ we will deal with the notion of

‘final judgment’ and ‘enforcement’ issues.

Keywords:.European Court of Justice, ne bis in idem, final judgment, enforcement, case law

1. Introduction

The European Court of Justice, dealing with cases in the field of the ‘ne bis in idem’ principle,

has established an autonomous interpretation of the notion of the ‘same acts’, a very important

component of the principle.

In the following cases the focus shall be on what constitutes final judgment according to the

opinion of the Court. However, in this area the Court parted slightly from the autonomous concept,

towards a case by case interpretation, ending with a national interpretation of the ‘final judgment’.

2. Transaction between the Prosecutor and the Defendant in Judgment from 11

February 2003 in Joined Cases C-187/01 and C-385/01 Hüseyin Gözütok and Klaus Brügge

The facts underlying the preliminary reference are based on two disputes involving, on the

one hand, Mr. Gözütok (of Turkish origin, residing in the Netherlands) and, on the other, Mr. Brügge

(a German resident). These disputes arise from two criminal proceedings brought against the

accused: in the former case, in Germany, concerning an offence committed in the Netherlands and, in

the latter, in Belgium, concerning an offence committed on Belgian soil. They were combined by the

Court because of links between the facts and the questions raised by national jurisdictions.1

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∗ Researcher, Centre for Legal, Economic and Socio-Administrative Studies, “Nicolae T itulescu” University,

Bucharest, Romania (e-mail: norel.neagu@gmail.com). This paper is part of a broader research activity which is carried

out under the CNCSIS PN II Contract no.27/2010.

1 For an anaysis of this case, see Nadine Thwaites, Mutual Trus t in Criminal Matters: the ECJ gives a first

interpretation of a provision of the Convention implementing the Schengen Agreement. Judgment of 11 February 2003

68 Lex ET Scientia. Juridical Series

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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.”

2.2. Facts

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.

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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.