L LOUBSER (LIZL) S1732285

EU Criminal Law

Case Note

C-129/14 Zoran Spasic

10 October 2015

List of Abbreviations

AFSJ Area of Freedom Security and Justice

CFREU Charter of Fundamental Rights of the European Union

CISA Convention on the Implementation of the Schengen Agreement

CJEU Grand Chamber of the Court of Justice

ECHR European Charter of Human Rights

Introduction

Van Bockel wrote that ‘The legal principle of ne bis in idem restricts the possibility of a defendant being prosecuted repeatedly on the basis of the same offence, act, or facts.’1 In law jargon it means that charging someone based on facts that said person has already been tried for would lead to ‘double jeopardy’ and Van Bockel continues to write that there isn’t a universally accepted rule regarding the ne bis in idem principle or internationally recognised provisions, but that it is respected and recognised in Europe in Article 54 of the CISA and Article 4 of the 7th Protocol of the ECHR.2

The Spasic3 case was an urgent preliminary ruling regarding an action brought against the decision to maintain the effects of an arrest warrant that was issued by the German authorities against Mr. Spasic.4 Mr. Spasic was being charged for fraud in Italy based on the same facts as those brought in the arrest warrant.

The Facts

Mr. Zoran Spasic, a Serbian National, committed fraud against a German citizen in Italy in 2009 for which he was prosecuted and sentenced to 12 months imprisonment and a EUR 800 fine, in absentia, in 2012 by the Italian authorities. In 2013 Mr. Spasic faced prosecution once again in Germany for the same fraud committed in Italy in 2009.5 Mr. Spasic was held in custody in Austria under an arrest warrant for similar acts and it was during this time when the conviction in Italy became final and executable and Mr. Spasic paid the EUR 800 fine. An arrest warrant was issued by the German authorities and Austria surrendered him the Germany’s custody and at this time Mr. Spasic brought an action before the Amtsgericht Regenburg in Germany to challenge his continued detention based on the ne bis in idem principle but the German authorities argued that the rule doesn’t apply because Mr. Spasic did not serve the custodial part of his sentence and it was dismissed. Mr. Spasic appealed the decision.6

1 Bas Van Bockel, The Ne Bis in Idem Principle in EU Law (Wolters Kluwer Law & Business 2010) 288.2 Ibid 288.3 C-129/14 PPU Zoran Spasic [2014] ECLI:EU:C:2014:586.4 C-129/14 PPU Zoran Spasic [2014] ECLI:EU:C:2014:586, Opinion of AG Jääskinen, par 1.5 Neil O’May and Tal Geron “The Court of Justice of the European Union considers the principle of “ne bis in idem” (double jeopardy) in Zoran Spasic” (Norton Rose Fulbright, July 2014) <http://www.nortonrosefulbright.com/knowledge/publications/118270/the-court-of-justice-of-the-european-union-considers-the-principle-of-emne-bis-in-idemem-double-jeopar>accessed 9 October 2010.

Questions in Law

Nergelius and Kristoffersson7 found that the appeal court Oberlandesgericht Nürnburg faced two questions which it referred for preliminary ruling. The first question was whether Article 54 of CISA, which contains an enforcement condition, is compatible with Article 50 of the CFREU and secondly whether the fact the Mr. Spasic’s fulfilment of half of his sentence of two independent penalties satisfies this condition?8

Article 54 of CISA9 states:

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.

The enforcement condition emphasised in Article 54 of CISA limits the ne bis in idem principle by stating that it is only applicable in cases where the penalty has been enforced or is in the process of being enforced.

Article 50 of the CFREU10 provides that:

No on shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

The CJEU qualified the enforcement condition found in Article 54 of CISA by stating that it is considered as a limitation of the right contained in Article 50 of CFREU and the court performed proportionality analysis of Article 54 of CISA. By using Article 52(1) of the CFREU11 . Article 52(1) of the CFREU12 states:

Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights

6 Joakim Nergelius and Eleonor Kristoffersson, Human Rights In Contemporary European Law 181.7 Ibid (Nergelius and Kristoffersson), 181.8 Angelo Marletta, 'The CJEU And The Spasic Case: Recasting Mutual Trust In The Area Of Freedom, Security And Justice?' (European Law Blog, 2015) <http://europeanlawblog.eu/?p=2655> accessed 9 October 2015.9 Convention Implementing the Schengen Agreement [1985] OJ L239/1910 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, art 50.11 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, art 52.12 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, art 52.

and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 13

Positions of the Parties

Mr. Spasic argued that he could not be prosecuted in Germany for his acts committed in Italy because he had already been prosecuted for it in Italy and have already been convicted and received a final and executable sentence. The court in Amtsgericht dismissed his action and he submitted his proof of payment for EUR 800 to the Regional Court of Regensburg thus proving that he has fulfilled the financial penalty against him. The Regional Court upheld the decision of Amstgericht and Mr. Spasic lodged an appeal his argument being that the enforcement condition laid out in Article 54 of CISA cannot lawfully restrict the scope of Article 50 CFREU and because he has paid the penalty fine that was imposed on him he should be released.14

The referring court requested that the present request for a preliminary ruling be dealt with urgently in accordance with the procedure laid out in Article 107 of the Rules of Procedure of the Court15, because under German law and accused may only be held in custody for up to a period of 6 months while awaiting trail and it can’t be extended.16

The Advocate General Jääskinen stated that ‘French and German governments pointed out in their observations, the execution condition laid down in Article 54 CISA does not call into question the ne bis in idem principle as such.’17

Judgement of the Court

The Court found that the enforcement condition laid down in the CISA constitutes a limitation of the ne bis in idem principle and that it is compatible with the

13 Ibid (Marletta).14 Ibid (AG Jääskinen), par 20-23.15 Rules of Procedure of the Court of Justice of 29 September 2012 [Official Journal L 265/2012, art 107.16 Ibid (AG Jääskinen), par 25.17 Ibid (AG Jääskinen), par 58.

CFREU. According to the Press Release18 regarding the judgement, explanations relating to the CFREU makes express references to the CISA regarding the principle, which ultimately means that the CISA lawfully limits the principle and also that the enforcement condition fund in CISA does not bring the principle into question but rather focusses on avoiding situations where persons who have been finally convicted in a Member State go unpunished (impunity) because they are not present in that state.

The Court also found that in cases where there is a custodial sentence and a fine imposed as principal penalties, the fulfilment of one is not sufficient to consider that the penalty has been enforced or is in the process of being enforced as CISA requires. Therefore the Court found that the enforcement condition is valid and it has not been fulfilled by Mr. Spasic.19

Marletta20 stated that the Court found the limitation proportionate relying on the fact that the enforcement condition of Article 54 of CISA ‘does not question the essence of ne bi in idem as such as it is laid down in Article 50 Charter’21 and that the limitation follows an objective of general interest which is important for the AFSJ by preventing impunity of convicted persons and that the condition is necessary, because none of the other measure provided for by mutual recognition could be as effective as the enforcement condition.22

Opinion

Marletta23 wrote that it seems to her as if the CJEU is reconsidering the role and importance of mutual trust which according to her has been the theoretical tenet of case law on the EU ne bis in idem principle and is one of the cornerstones of AFSJ and goes on to say that the view of the Advocate General is much more in line with traditional philosophy of mutual trust in the EU context:

Advocate General Jääskinen recalls that “the principle that every penalty must be executed forms part of the rule of law” whose respect is a common feature to all the Member States of the Union… Under this

18 Christopher Fretwell, 2014, Court of Justice of the European Union, Press Release No 77/14 <http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140077en.pdf> accessed 9 October 2015.19 Ibid (Fretwell).20 Ibid (Marletta).21 Ibid (Marletta). 22 Ibid (Marletta).23 Ibid (Marletta).

more “trustful” approach, the “necessity” of the enforcement condition would have probably received a different weight in the balance.24

Attorneys at Norton Rose Fulbright wrote that when the Court confirmed that fulfilling a part of a penalty is not sufficient to argue ne bis in idem and therefore the Court has ‘removed a potential loophole which would have allowed convicted persons to avoid a custodial sentence by moving jurisdiction.’25

Advocate General Jääskinen noted that the ne bis in idem principle laid down in Article 54 of CISA serves as a fundamental safeguard for citizens in legal systems based on:

[T]he acknowledgment that the individual has a series of rights and freedoms in respect of the acts of public bodies. That provision therefore constitutes a restriction on the exercise of the right to prosecute and punish a criminal act. …that article is intended to ensure legal certainty through respect for decisions of public bodies that have become final, in the absence of harmonisation or approximation of the criminal laws of the Member States.26

Advocate General goes on to say that the limitation that Article 54 of the CISA27 provides does not go further than what is necessary to prevent the impunity of persons who have been convicted and sentenced for crimes.

Nergelius and Kristoffersson28 wrote that the finding of the Court corresponds with the Advocate General’s opinion but only up until the point when the Court decides to do the proportionality test pursuant to Article 52(1) of the CFREU29 and ‘painting a broad picture a Union offering it’s citizen an area of freedom, security and justice’30 and thereby tried to measure if this objective would be obtained if the through Article 54 of CISA or not. They continue to state that when applying the proportionality test to this legal principle it could often lead to cases where

24 Ibid (Marletta).25 Neil O’May and Tal Geron “The Court of Justice of the European Union considers the principle of “ne bis in idem” (double jeopardy) in Zoran Spasic” (Norton Rose Fulbright, July 2014) <http://www.nortonrosefulbright.com/knowledge/publications/118270/the-court-of-justice-of-the-european-union-considers-the-principle-of-emne-bis-in-idemem-double-jeopar>accessed 9 October 2010.26 Ibid (AG Jääskinen), par 114.27 Convention Implementing the Schengen Agreement [1985] OJ L239/19, art 54.28 Ibid (Nergelius and Kristoffersson) 184.29 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, art 52(1).30 Ibid (Nergelius and Kristoffersson) 184.

the limitation did exceed its scope and was therefore not applied and it lead to impunity.

In conclusion and in my personal opinion I believe that the enforcement condition is to restricting and there should rather be provisions in place which allows convicted persons to be surrendered to the convicting country to fulfil the original sentence, or if this is unsatisfactory, to continue with the case (which leads to ‘double jeopardy’) but to only enforce the lesser of the sentences and not both.

In essence ne bis in idem should protect people more than disadvantage them and if the rule protects the wrong people there should be other provisions in place to remedy that, but taking away the protection only in order to ensure that some people don’t get away with impunity is not reasonable as there are other ways to remedy those situations.

Reference List

Case Law

Case C-44/79, Liselotte Hauer v Land Rheinland-Pfalz [1979] ECLI:EU:C:1979:290

Case C-129/14 PPU Zoran Spasic [2014] ECLI:EU:C:2015:586

Case C-129/14 PPU Zoran Spasic [2014] ECLI:EU:C:2015:586, Opinion AG Jääskinen

Legislation

Convention Implementing the Schengen Agreement [1985] OJ L239/19

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5

European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02

Rules of Procedure of the Court of Justice of 29 September 2012 [Official Journal L 265/2012

Literature

Bockel B, The Ne Bis In Idem Principle In EU Law (Wolters Kluwer Law & Business 2010)

Internet Sources

Fretwell C, 2014, Court of Justice of the European Union, Press Release No 77/14 <http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140077en.pdf> accessed 9 October 2015

Marletta A, 'The CJEU And The Spasic Case: Recasting Mutual Trust In The Area Of Freedom, Security And Justice?' (European Law Blog, 2015) <http://europeanlawblog.eu/?p=2655> accessed 9 October 2015

O’May N and Geron T “The Court of Justice of the European Union considers the principle of “ne bis in idem” (double jeopardy) in Zoran Spasic” (Norton Rose Fulbright, July 2014) <http://www.nortonrosefulbright.com/knowledge/publications/118270/the-court-of-justice-of-the-european-union-considers-the-principle-of-emne-bis-in-idemem-double-jeopar>accessed 9 October 2010

Nergelius J and Kristoffersson E, Human Rights In Contemporary European Law (Bloomsbury Publishing, 2015)