After a long wait, two judgments regarding the Schengen double jeopardy rules have been issued by the Court of Justice of the European Union (CJEU), accompanied by two Commission reports examining the implementation of related EU laws. The judgments clarify these rules, while the reports highlight Member States’ recurring delays in fulfilling their legal duties.
Background
Many national constitutions and the European Convention on Human Rights’ Seventh Protocol forbid double jeopardy, but typically only within the same state. EU law expands this by prohibiting cross-border double jeopardy. Article 54 of the Schengen Convention, applicable to all Member States except Ireland and Schengen associates, prohibits prosecuting someone in one Contracting Party if their trial for the same act has concluded in another, provided any penalty imposed has been or is being enforced.
Article 55 outlines exceptions, Article 56 mandates deducting prior imprisonment in another Member State from any new sentence, Article 57 establishes inter-state consultation procedures, and Article 58 allows for more lenient rules between specific Member States.
Despite limited jurisdiction over pre-Lisbon Treaty EU criminal law, the CJEU has issued numerous judgments on these rules, with more anticipated after December 1st when these limitations end. EU law generally doesn’t regulate double jeopardy within a Member State, except when linked to EU law.
Investigating the same individual for identical acts across multiple Member States is inefficient due to the existing double jeopardy rules. Thus, a 2009 Framework Decision mandates information sharing and consultation between national authorities in such cases.
Conversely, separate crimes committed by the same person typically result in harsher penalties. A 2008 Framework Decision outlines the application of this principle when prior convictions occur in other Member States.
The judgments
The first judgment, Spasic, examined the validity of the “execution condition” (requiring penalty enforcement for double jeopardy to apply) under the EU Charter of Rights and its applicability to cases with both custodial and non-custodial penalties. The second judgment, M, addressed whether a Belgian pre-trial “non-lieu” ruling based on insufficient evidence constituted a “final judgment,” preventing prosecution in Italy for the same alleged offenses.
The CJEU deemed the execution condition valid under Article 52(1) of the Charter, as it is established by law, respects the right’s essence by limiting double jeopardy only when punishment is evaded, and serves the general interest by preventing impunity. While other EU measures exist, they don’t guarantee punishment or are subject to conditions, making the execution condition proportionate. However, a second prosecution would be disproportionate if the initial sentence could still be enforced.
The Court determined that custodial and non-custodial penalties are separate when applying the execution condition, meaning paying a fine doesn’t equate to serving a prison sentence, thus not exempting someone from prosecution in another Member State.
The CJEU concluded that a “non-lieu” ruling, once upheld on appeal, constitutes a “final judgment” as it definitively resolves the case based on national law. The possibility of extraordinary remedies or new evidence allowing a fresh prosecution, as per the ECHR Protocol and Belgian law, doesn’t negate this. Only the first Member State, not the second, can initiate a new prosecution based on new evidence.
The reports
The Commission report on the Framework Decision concerning conflicts of jurisdiction reveals that only half of Member States implemented it by the June 2012 deadline, rendering general conclusions on its quality impossible. The report highlights that some Member States haven’t implemented key information-sharing rules, and most allow parallel investigations, wasting resources. Only Croatia mandates terminating pending prosecutions in one Member State based on another’s final judgment, aligning with the M judgment.
Regarding the Framework Decision on the consequences of convictions, six Member States haven’t implemented it by the 2010 deadline. The report expresses concern over Member States limiting mutual recognition to final convictions, potentially violating the presumption of innocence. It criticizes nine Member States for inadequate implementation details, urging them to provide more information before potential infringement actions. The report doesn’t assess the practical application of the European Criminal Records Information System (ECRIS) for information exchange.
Comments
The CJEU’s validation of the “execution condition” is reasonable considering the public interest in preventing impunity for convicted criminals. Additionally, the Court correctly rejected equating a fine payment to serving a prison sentence, as it would enable impunity.
The Court appropriately applied the proportionality principle, determining that a second prosecution is unacceptable if the initial sentence can be enforced, preventing double punishment and wasted resources.
It’s worth noting that the Court hasn’t addressed the validity of national derogations allowed by Article 55 of the Schengen Convention. These derogations, unlike the execution condition, permit a second prosecution under specific circumstances, raising questions about whether these interests justify overriding double jeopardy.
The M case clarifies that the double jeopardy rule applies after a final appeal in the first Member State, preventing new proceedings or halting ongoing ones in the second. This emphasizes the importance of promptly resolving jurisdictional conflicts to avoid wasted resources and complications for suspects.
Clarifying the handling of new evidence is also crucial. The Court’s statement that only rulings on the “merits” are considered final judgments contradicts the Gasparini judgment, making the latter an anomaly.
These judgments align the Schengen double jeopardy rules with human rights law. The Court acknowledged Article 50 of the Charter for the first time in this context and now interprets Schengen rules in light of the Charter. The CJEU also recognizes the European Court of Human Rights’ rulings as a source of interpretation after initially dismissing their relevance.
Regarding EU legislation, the Spasic case highlighted the Framework Decision on conflicts of jurisdiction’s weakness in preventing multiple prosecutions due to its lack of mandatory centralized prosecution and criteria for determining prosecution location. This highlights the need for amending this decision to improve its effectiveness.
The report on the Framework Decision on the consequences of prior convictions focuses on theoretical implementation without evaluating its practical application alongside the ECRIS system, particularly concerning conviction classification across Member States.
These reports emerge as justice ministries face potential infringement proceedings for failing to fulfill legal obligations, including those related to prisoners, probation, and hate crime laws. The Commission’s response will reveal its commitment to upholding EU law within this domain.