Keywords
Summary

Keywords

1. European Union — Police and judicial cooperation in criminal matters — Protocol integrating the Schengen acquis — Convention implementing the Schengen Agreement — Ne bis in idem principle — Scope — Decision of the Public Prosecutor definitively discontinuing criminal proceedings against an accused provided the accused fulfils certain obligations — Whether included — (Convention implementing the Schengen Agreement, Arts 54, 55 and 58)

2. European Union — Police and judicial cooperation in criminal matters — Protocol integrating the Schengen acquis — Convention implementing the Schengen Agreement — Ne bis in idem principle — Application as regards a decision of the Public Prosecutor definitively discontinuing criminal proceedings against an accused provided the accused fulfils certain obligations — Scope limited to acts of public authorities, not affecting the victim's civil rights of action — (Convention implementing the Schengen Agreement, Art. 54)

Summary

1. The ne bis in idem principle, laid down in Article 54 of the Convention implementing the Schengen Agreement, the objective of which is to ensure that no one is prosecuted on the same facts in several Member States on account of his having exercised his right to freedom of movement, also applies to procedures whereby further prosecution is barred, by which the Public Prosecutor of a Member State discontinues criminal proceedings brought in that State, without the involvement of a court, once the accused has fulfilled certain obligations and, in particular, has paid a certain sum of money determined by the Public Prosecutor.

On conclusion of such a procedure, the person concerned must be regarded as someone whose case has been "finally disposed of" for the purposes of Article 54 aforesaid and, once the accused has complied with the obligations imposed on him, the penalty entailed in the procedure must be regarded as having been "enforced" for the purposes of Article 54.

The effects of such a procedure must, in the absence of an express indication to the contrary in Article 54, be regarded as sufficient to allow the ne bis in idem principle laid down by that provision to apply, even though no court is involved in the procedure and the decision in which the procedure culminates does not take the form of a judicial decision.

Furthermore, nowhere in Title VI of the Treaty on European Union relating to police and judicial cooperation in criminal matters, or in the Schengen Agreement or the Convention implementing that agreement, is the application of Article 54 made conditional upon harmonisation, or at the least approximation, of the criminal laws of the Member States relating to procedures whereby further prosecution is barred.

In those circumstances, the ne bis in idem principle necessarily implies that, regardless of the way in which the penalty is imposed, the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied.

see paras 27-33, operative part

2. The only effect of the ne bis in idem principle, as set out in Article 54 of the Convention implementing the Schengen Agreement, is to ensure that a person whose case has been finally disposed of in a Member State is not prosecuted again on the same facts in another Member State. The principle, when it applies to decisions definitively discontinuing prosecutions in a Member State, adopted without the involvement of a court and not taking the form of a judicial decision, does not preclude the victim or any other person harmed by the accused's conduct from bringing a civil action to seek compensation for the damage suffered.

see para. 47