Some Developments to the ne bis in idem Principle in the European Union: Criminal Proceedings Against Hüseyn Gözütok and Klaus Brügge
| Date | 01 September 2003 |
| DOI | http://doi.org/10.1111/1468-2230.6605005 |
| Published date | 01 September 2003 |
Some Developments to the ne bis in idem Principle in
the European Union: Criminal Proceedings Against
Hu
¨seyn Go
¨zu
¨tok and Klaus Bru
¨gge
Maria Fletcher
On 10 February 2003, the European Court of Justice gave its judgment in joined
Cases Criminal proceedings against Hu
¨seyn Go
¨zu
¨tok and Klaus Bru
¨gge
1
on the
implementation of Article 54 of the Convention implementing the Schengen
Agreement of 14 June 1985 between the Governments of the States of the Benelux
Economic Union, the Federal Republic of Germany and the French Republic on the
gradual abolition of checks at their common borders, signed on 19 June 1990 (CISA).
2
This decision marked the first time that the Court of Justice had exercised its
jurisdiction to rule upon the interpretation of EU third pillar measures relating to
police and judicial co-operation in criminal matters, a jurisdiction conferred on it
by the Treaty of Amsterdam.
3
It also marked the beginning of a week in which the
safeguarding of citizens rights to defence and fair trial, received welcome, if
belated, political attention at the European level.
The questions referred related to the interpretation of the ne bis in idem principle
(the right not to be prosecuted or tried twice for the same criminal conduct)
enshrined in Article 54 of the CISA, in particular whether this principle constituted
a bar to criminal proceedings in one Member State where prosecutions brought on
the same facts in another Member State had been definitively discontinued.
Adopting a broad and welcome interpretation of Article 54 of the CISA, the Court
held that a person may not be prosecuted in a Member State on the same facts as
those of which his/her case has been ‘‘finally disposed of’’ in another Member State,
even if no court has been involved in the settlement of the criminal proceedings and
the settlement does not take the form of a judicial decision.
4
In both cases at issue
the criminal proceedings had been definitively discontinued following payment of a
specific sum determined by the Public Prosecutor’s Office.
Lecturer in European Law, School of Law, University of Glasgow
1 Cases C-187/01 and C-385/01 delivered on 11 February 2003. Not yet reported (at time of
writing.) The judgment and opinion may be accessed via http://curia.eu.int.
2 OJ 2000 L239/19. 22.09.2000.
3 See Article 35 EU, which confers jurisdiction on the ECJ to give preliminary rulings on the
validity and interpretation of framework decisions, decisions and on the interpretation of
conventions and measures implementing them under Title VI EU. However, according to Article
35(2), only courts of Member States which have made a declaration accepting the jurisdiction of
the court may make references, and if the Member State so chooses it may restrict referring courts
to those of final instance. The UK, Ireland and Denmark have not accepted the jurisdiction of the
ECJ pursuant to Title VI EU. All other Member States have declared that they would allow
references with only France and Spain limiting this right to their courts of final instance. Prior to
the Amsterdam Treaty the role of the ECJ in the third pillar was limited in that it had no
mandatory jurisdiction. It could be awarded jurisdiction to interpret and settle disputes on the
application of Conventions, in accordance with such arrangements as each Convention might lay
down. For more detail on the Maastricht era jurisdiction of the ECJ see S.Peers, EU Justice and
Home Affairs (Essex: Longman, 2000).
4 In doing so the Court followed the Opinion of Advocate General Ruiz-Jarabo Colomer, delivered
on 19 September 2002. See paragraph 90.
rThe Modern Law Review Limited 2003 (MLR 66:5, September). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 769
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