The Post-Lisbon Principle of Transnational Ne Bis in Idem: On the Relationship between Article 50 Charter of Fundamental Rights and Article 54 Convention Implementing the Schengen Agreement

AuthorDominik Brodowski,Christoph Burchard
DOI10.1177/203228441000100304
Published date01 September 2010
Date01 September 2010
Subject MatterArticle
310 Intersentia
ARTICLES
THE POSTLISBON PRINCIPLE OF
TRANSNATIONAL NE BIS IN IDEM: ON THE
RELATIONSHIP BETWEEN ARTICLE 50
CHARTER OF FUNDAMENTAL RIGHTS AND
ARTICLE 54 CONVENTION IMPLEMENTING
THE SCHENGEN AGREEMENT
Case note on District Court Aachen,
Germany, (52 Ks 9/08 – “Boere),
Decision of 8 December 2010
C B and D B*
ABSTRACT
e ne bis in idem provision in Article 50 CFR – which gained the statu s of primary law
when the Lisbon Treaty entered into force – di ers in some important detail s from the
long known Article 54 CISA. For example, only the latter contains an explicit
“enforcement clause” – that only executed sentences prohibit a second proceeding. We
discuss a recent case decided by the District Court Aachen where this di erence was
relevant, and consider Article 54 CISA to be a (secondary) operational embodiment of
the (primary) Article 50 CFR. Despite the “angst cl ause” in Article 51(1) CFR, the judicial
rights speci ed in the CFR are at least applicable whenever national courts interpret
Union laws. At this point in time, the o cial Explanations to the CFR guide the
interpretation of the CFR, albeit not precluding f uture dynamic extensions of the scope
of protection o ered by the CFR.
Keywords: Charter of Fundamental Rights; double jeopardy; implementing Union
law; interpretative methodolog y; ne bis in idem1
* Dr. Christoph Burchard, LL.M. (NY U) and Dominik Brodowski, LL.M. (U Penn) are senior
researchers at the C hair for Europea n Crimina l Law and Crimin al Procedure, Pr ofessor Dr. Joachim
Voge l, Tübin gen, Germany.  is contribution is a rev ised version of our art icle original ly published
in German in S trafverteid iger Forum (Strafo) 2010, pp. 177–186.
e Post-Lisbon Principle of Transnat ional Ne Bis In Idem
New Journal of Eu ropean Crimina l Law, Vol. 1, Issue 3, 2010 311
1. INTRODUCTION
Up until the Lisbon Treaty entered into force on 1 December 2009, the European
principle of transnational ne bis in idem wa s established by lower-ranking sources of
European law, namely by Article 54 Convention Implementing the Schengen
Agreement1 (CISA) and the corresponding jurisprudence of the European Court of
Justice (ECJ). Today, the Lisbon Treaty has brought the Charter of Fundamental
Rights (CFR)2 into (full3) force, and the rights, freedoms and general principles
contained therein now constitute primary European law. Henceforth, the European
principle of transnational ne bis in idem const itutes the fundamental “[r]ight not to be
tried or punished tw ice in criminal proceed ings for the same crimina l o ence” within
the common European space of freedom, justice and security (Article 50 CFR).4
Although Article 54 CISA and Article 50 CFR appear similar in most respects, on
closer inspection, at least one dispa rity becomes clear:
Article 54 CISA only bars multiple prosecutions in di erent EU member states in
cases where,
if a penalty has been imposed, it has been enforced, is actually in t he process of being
enforced or can no longer be enforced under the laws of the sentencing Contracting
Party.
In contrast, Art icle 50 CFR drops this “enforcement clause” in foreseeing that
[n]o one shall be liable to be tried or pu nished again in cri minal proceedi ngs for an o ence
for which he or she has already been  nally acquitted or convicted within t he Union in
accordance with the law.
Accordingly, the protection against double jeopa rdy seems greater and seems already
applicable once a penalty has been imposed, irrespective of it having been enforced.
1 OJ L 239 of 22.9.2000, p. 19; see , inter alia, the a nalysis of related EC J jurisprudence by Mit silegas EU
Crimina l Law, 2009, at pp. 143 et seq.
2 OJ C 303 of 14.12.2007, p. 1; originall y OJ C 364 of 17.12.2000, p. 1.
3 Certain l imitations stem from Protoc ol (No 30) on the application of the Char ter of Fundamental
Rights of the European Union to Poland and to the United Kingdom, OJ C 83 of 30.3.2010, p. 313,
and – though it has not b een rati ed yet – f rom the Protocol on the application of the C harter of
Fundamental R ights of the European Union to t he Czech Republic, Counc il Document 15265/1/09
REV 1 of 1 December 2 009, p. 14.
4 In contrast, a nat ional ne bis in idem is part of constitutional traditions common to the Member
States and is fu rthermore protected by inter national instrument s such as Art. 4 (1) of the Protocol
No. 7 to the Convention for the P rotection of Human Rig hts and Fundamental Fre edoms (ETS No.
117), and therefore has to be respec ted under Art. 6 (2) Treaty on European Un ion, as amended by
the Treaties of Niece, Athe ns and Luxembourg.  e new, constitutional foundation of the European
ne bis in idem is unprecedente d. See Vog el in: Hoyer et al. (eds.), Festschri für Friedrich-Chri stian
Schroeder, 2006, p. 877, at pp. 879 et seq. and at p. 886; German Federal Con stitutional C ourt
(Bundesverfassungsgericht), Dec isions vol. 12, p. 62, at p. 66.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT