PRINCIPLE NE BIS IN IDEM IN EUROPEAN UNION CRIMINAL LAW Zoran Burić, PhD University of Zagreb – Faculty of Law Department for Criminal Procedural Law

GENERALLY ON NE BIS IN IDEM (1) © ONE OF THE BASIC LEGAL PRINCIPLES COMMON TO ALL CRIMINAL JUSTICE SYSTEMS IN EUROPE (DOUBLE JEOPARDY) © WHAT DOES IT MEAN: NOBODY SHOULD BE TRIED TWICE FOR THE SAME CRIMINAL OFFENCE © PURPOSE OF THE PRINCIPLE: 1.PROTECTION OF THE INDIVIDUAL FROM UNLIMITED STATE POWER 2.LEGAL CERTAINTY OF JUDICIAL DECISIONS

GENERALLY ON NE BIS IN IDEM (2) © NE BIS IN IDEM IN NATIONAL LEGAL ORDERS: 1. ONLY „NATIONAL” NE BIS IN IDEM IS RECOGNIZED 2. NO COMMON STANDARDS ON THE APLLICATION OF THE PRINCIPLE: DIFFERENT STANDPOINTS ON „BIS” AND „IDEM”

GENERALLY ON NE BIS IN IDEM (3) © NE BIS IN IDEM IN INTERNATIONAL (HUMAN RIGHTS) LAW: 1. ECHR, Art. 4 Protocol 7 2. ICCPR, Art. 14(7) 3. AGREEEMENTS ON INTERNATIONAL COOPERATION IN CRIMINAL MATTERS: LIMITED APPLICABILITY, LIMITED EFFECTS

NE BIS IN IDEM IN EU CRIMINAL LAW © Convention Implementing the Schengen Agreement (CISA), Art © Schengen Agreement (1985) – CISA (1990) - outside of the EU legal framework - integration into the EU legal framework – Amsterdam Treaty (1999, came into force) – Third pillar of EU law © Why was (is) ne bi in idem part of Schengen?

SCHENGEN NE BIS IN IDEM © TRANSNATIONAL V. NATIONAL NE BIS IN IDEM © Art. 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 Contracting Party. © Schengen provisions on ne bis in idem developed in the jurisprudence of the European Court of Justice

ECJ JURISPRUDENCE ON NE BIS IN IDEM (1) ©... TRIAL... FINALLY DISPOSED OF 1. WHICH DECISIONS OF WHICH NATIONAL (JUDICIAL) AUTHORITIES TRIGGER THE APPLICATION OF NE BIS IN IDEM? A) OUT OF COURT SETTELMENT BETWEEN THE PUBLIC PROSECUTOR AND THE ACCUSED: GÖZÜTOK and BRÜGGE B) SUSPENSION OF CRIMINAL INVESTIGATION DUE TO FORMAL REASONS (PROCEDURE UNDER WAY IN ANOTHER CONTRACTING PARTY): MIRAGLIA C) ACQUITTAL DUE TO LACK OF EVIDENCE: VAN STRAATEN D) ACQUITTAL DUE TO LAPSE OF TIME: GASPARINI E) DECISIONS WHICH ARE NOT FINAL UNDER NATIONAL LAW: TURANSKY

ECJ JURISPRUDENCE ON NE BIS IN IDEM (2) ©... TRIAL... FINALLY DISPOSED OF, CONCLUDING REMARKS: 1. A DECISION HAS TO BE FINAL UNDER NATIONAL LAW; 2. THE RECOGNITION OF ITS EFFECTS MUST NOT RUN CONTRARY TO THE GOAL OF THE UNION TO MAINTAIN AND DEVELOP AN AREA OF FREEDOM, SECURITY AND JUSTICE

ECJ JURISPRUDENCE ON NE BIS IN IDEM (3) ©...SAME ACTS VAN ESBROECK, IMPORT AND EXPORT OF DRUGS 2. VAN STRAATEN, QUANTITY OF DRUGS 3. GASPARINI, SMUGGLING OF GOODS AND SUSEQUENT SALE OF THE SAME GOODS - THE COURT ACCEPTED THE APPROACH WHICH IS BASED ON THE „SAME FACTS”, RATHER THAN ON THE SAME LEGAL QUALIFICATION OF THE FACTS

ECJ JURISPRUDENCE ON NE BIS IN IDEM (4) PENALTY: 1. KRETZINGER, CONDITIONAL SENTENCE

CONCLUDING REMARKS NE BIS IN IDEM IN THE SERVICE OF ONE OF THE FOUNDING FREEDOMS OF THE EUROPEAN UNION NE BIS IN IDEM IN THE SERVICE OF DEVELOPING AND MAINTAINING AN AREA OF FREEDOM, SECURITY AND JUSTICE WITHIN THE EU

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