Aplicaţii practice ale principiului ne bis in idem în jurisprudenţa Curţii de Justiţie a Uniunii Europene
Practical applications of the ne bis in idem principle in the case-law of the European Court of Justice

Summary/Abstract: The application of the ne bis in idem principle, regarding the concept of bis, may raise some difficulties, when the decision whose effects are analyzed is given in a procedure whereby prosecuting authorities discontinue criminal proceedings. When it comes to the transnational dimension of the principle, we are interested in the provision enshrined in the article 54 of the Convention Implementing the Schengen Agreement (CISA). The Court of Justice of the European Union (CJEU) became able to give preliminary rulings on the interpretation of this provision with the coming into force of the Amsterdam Treaty. Since then, the Court has made significant efforts to define the concept of elements, bis and idem. The concept of bis, which is relevant to the present study, refers to decisions given by the judicial authorities which can trigger the principle. The present article analyses the following cases of the CJEU: Gözütok and Brügge, Miraglia and, finally, Turanský. Although it hasn’t succeed in creating a certain pattern to be followed, the CJEU has brought new elements which can be taken into consideration, when it comes to establishing whether a certain decision, given by the prosecuting authorities, enables the application of the ne bis in idem principle enshrined in the article 54 CISA. The Gözütok and Brügge case is a landmark one, because it is the first case where the ne bis in idem effect is given to a decision of the Public Prosecutor discontinuing criminal proceedings, once the accused has paid a certain sum of money. It is also the only case where the Court responded affirmatively to a question raised on the applicability of the article 54 CISA to a decision given by a prosecuting authority. The next two cases, Miraglia and Turanský, also bring new elements on the interpretation of the bis element, but both cases were given negative responses regarding the incidence of the article 54 CISA in the given circumstances. In Miraglia, the Court decided that the article 54 CISA does not apply to a decision of the judicial authorities declaring a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution, on the sole ground that criminal proceedings have been started in another member state. In Turanský, the Court held that a decision discontinuing criminal proceedings, which does not have the ne bis in idem effect in the state whose judicial authorities gave it, can not bar further prosecution in another member state, in respect of the same facts. Finally, we consider that this problem, whether a decision discontinuing criminal proceedings given by a prosecuting authority may entail the application of the ne bis in idem principle, has not yet been given a solution, but it will be, at least, interesting to watch the activity of the CJEU in this matter, in the future cases.

• Details
• Contents