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
Norel Neagu
LESIJ NO. XIX, VOL. 2/2012
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
Researcher, Centre for Legal, Economic and Socio-Administrative Studies, “Nicolae T itulescu” University,
Bucharest, Romania (e-mail: 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
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.”
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.
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.

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