Principiul ne bis in idem. Compatibilitatea art. 54 din Convenţia Schengen cu art. 50 din Carta drepturilor fundamentale ale Uniunii Europene. CJUE, Cauza C-129/14, Zoran Spasic
Ne bis in idem. Compatibility of article 54 from Convention Implementing the Schengen Agreement and article 50 from Charter of Fundamental Rights of the European Union. CJEU. Case C-129/14 – Zoran Spasic

Summary/Abstract: In the present study, the author analysis the judgment of the European Court of Justice in the Spasic case, another decision that consolidates the recent case law of the European court, evolving in the matter of the ne bis in idem principle. Setting of from the questions referred for a preliminary ruling, the study is divided into two distinct sections. In the first part the compatibility of Article 54 of the Schengen Convention and Article 50 of the Charter of Fundamental Rights of the European Union is analyzed, in so far as it subjects the application of the ne bis in idem principle to the condition 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 State? Annotating the Court’s conclusion - which found the two legal texts compatible - the author is critical regarding the initial scenario and the stakes present that could support such a finding of the Court. Although the author recognizes the efforts undertaken by the Court to identify legal arguments, still the author criticizes alleged "deficiencies" regarding various forms of judicial cooperation at European level attributed to member states and which were subsequently invoked to justify restricting the fundamental rights of individuals. Analyzing the Court's second question, namely whether the condition regarding the execution of the penalty is fulfilled when the penalty was executed in part, the author embraces the conclusion. The finding of the Court – which states that Article 54 CISA must be interpreted as meaning that the mere payment of a fine by a person sentenced by the self-same decision of a court of another Member State to a custodial sentence that has not been served is not sufficient to consider that the penalty ‘has been enforced’ or is ‘actually in the process of being enforced’ within the meaning of that provision – is considered more than predictable. According to the author, a different interpretation would have lead to the spoliation of the ne bis in idem principle enshrined in Article 54 of the CISA and could have jeopardize the application of the article. Finally, the author shows that moving on the merits of the Court in its attempt to identify legal arguments that would substantiate its findings, particularly in relation to the first question, it is necessary for the European legislature to try to take responsibility for clear, unambiguous and contradictory solutions (if not ... incompatible), especially given the fact that the doctrine has already identified and proposed such solution more than 10 years ago.

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