TABLE OF CONTENTS
1. Introduction and background
1.2 The origin of the sources of the ne bis in idem principle in the European Union
1.3 Ne bis in idem-analysis and comparison of the relevant articles
1.4 The case of Boere
1.4.1 Facts of the case
1.4.2 Judgment and reasoning
1.4.3 Criticism of thejudgment
2. Is an enforcement requirement mandatory?
2.1 Status of Schengen Law
2.2 Status of the Charter
2.3 Hierarchy between Article 54 CISA and Article 50 EuCFR
2.4 The compatibility of Article 54 CISA with EU Law
2.4.1 Incompatibility of Art 54 CISA with Article 50 EuCFR
2.4.2 The influence of general principles
18.104.22.168 Ne bis in idem as a general principle
22.214.171.124 The fundamental rights as enshrined in the ECHR as general principles
126.96.36.199 Scope of the ne bis in idem general principle regarding enforcement
2.4.3 Interim conclusion
2.5 Justification of the enforcement requirement
2.5.1 Justification on the basis of Article 52 (1) EuCFR
188.8.131.52 The impact of mutual recognition
184.108.40.206 Influence ofFree Movement Rights
220.127.116.11 Interim conclusion
2.5.3 Justification using Article 54 CISA as a concretization of Article 50 EuCFR
2.5.4 Interim conclusion
3. The implication of this outcome for European Union Law
3.1 Consequences for Article 54 CISA
3.2 Consequences for the European Arrest Warrant
4. Final conclusion
1. Introduction and background
In this chapter the research question will be introduced. The background to the research question will be outlined as this fundamental question may be better understood in context.
During the World War II period Mr Boere committed various murders. He was brought to Court and sentenced in the Netherlands however this sentence was never enforced. Almost 50 years later he was brought to court again for the same crime, this time in Germany. The German Court had to first assess whether they could try Mr Boere again or if the so-called ne bis in idem principle applied.
The Latin term ne bis in idem or non bis in idem is literally translated as “not the same thing twice”. The general aim of this principle is to ensure that a person cannot be held liable twice for the same crime. This concept is further inherent in the rule of law. As far back as Roman times it was accepted that the ne bis in idem principle would lead to legal security, since final closure of cases meant individuals could trust the final determination of their “guilt”.
The German Court encountered difficulties because Mr Boere’s sentence was never enforced in the Netherlands, thus with the absence of this element it is questionable if this ne bis in idem is applicable in his case. As Mr Boere was first sentenced in the Netherlands and later brought to court in Germany there is a cross border situation. The German Court had to examine the applicability of the ne bis in idem principle in the European Union where the sentence has not been enforced. The ne bis in idem principle is present in various articles in European Union Law. It is codified in Article 50 of the Charter of Fundamental Rights and Freedoms (hereinafter EuCFR or the Charter) which became binding with entry into force of the Treaty of Lisbon and in Article 54 of the Convention on the Implementation of the Schengen Agreement (hereinafter CISA) which was integrated to the framework of the European Union on the first of May 1999 with the Treaty of Amsterdam by the Schengen Protocol and is part of its law.
In the case of Mr Boere the cross-border situation falls under the local scope of both aforementioned articles. The complexity of the situation lies in the fact that these articles differ in wording regarding the “enforcement of the sentence”. Article 50 EuCFR is applicable when the person was “acquitted or convicted”, Article 54 CISA requires that the penalty is “imposed, enforced or in the process of being enforced or cannot longer be enforced”, (hereinafter enforcement requirement). Mr Boeres sentence was not enforced in the Netherlands. Thus the German court had to decide whether to apply ne bis in idem and subsequently whether to use Article 50 EuCFR or Article 54 CISA. It is notable that the decision made would make an enormous difference between prison sentence and freedom.
The Boere case illustrates the starkly different results possible dependent on the application of Article 54 CISA or Article 50 EuCFR.. The case illustrates the need to determine and analyse the ne bis in idem principle and its scope in the European Union concerning the requirement of enforcement. Having a current case makes it easier to comprehend the complex subject matter of this thesis. The German Court argued on how to understand the relation between article 54 CISA and Article 50 EuCFR and thus ruled in their case about the enforcement requirement of the ne bis in idem principle in the European Union. This argumentation of the German Court gives a starting point and will be critically analysed. With this argumentation of the German Court in mind I will further focus on the ne bis in idem principle and carve out the scope in the European Union concerning the requirement of enforcement.
This dissertation will commence with an illustration of the sources of the ne bis in idem principle in EU law. It will continue with an analysis of the wording of the articles regulating ne bis in idem in the European Union followed by an explanation of the argumentation the German Court used to determine the scope of ne bis in idem in the case of Boere. Then I will illustrate the hierarchy between Article 54 CISA and Article 50 EuCFR, which indicates the ranking of the articles and thus determines which article prevails. I will analyse the scope of the ne bis in idem principle with regard to the enforcement requirement. This will entail an analysis of the ranking of the concerned articles, the scope of general principles and the impact of the European Convention on Human Rights and Fundamental Freedoms (hereinafter ECHR). Moreover it will concentrate on possibilities by means of proportionality on how to restrict the scope. After this part there is a focus on the outcome of this examination and how this outcome influences the interpretation of current provisions regarding ne bis in idem in the European Union and whether there is an enforcement requirement or not.
1.2 The origin of the sources of the ne bis in idem principle in the European Union
In order to understand the origins about the difficulties about which article to use and further if the ne bis in idem principle in the EU entails an enforcement requirement, a short background to the sources of the articles of the ne bis in idem principle in the European Union is presented.
The importance of the ne bis in idem principle in the European Union is undeniable. Open borders, cross border trade and free movement rights arejust some of the factors necessitating the introduction of this principle. As the Union grew closer, this principle ensured inter alia the fundamental Union rights of free movement, as this principle secured that persons who used their free movement right could not have been sentenced twice for the same crime. With the possibilities of borderless travelling inside the Schengen Area the Schengen Agreement of 1985 was followed in by the CISA in 1990 where the ne bis in idem principle is codified in Article 54 CISA. In order to understand the analysis in a later part of this thesis of Article 54 CISA one must take a look at the “Schengen law” and where it derives from.
The Schengen agreement was concluded as an International Agreement between five Member States and was followed in by the CISA.
The idea of “Schengen law” is to combine the abolition of border controls, as stipulated in Article 2 (1) CISA, with so called “compensatory measures”. One of these measures is to avoid “the adverse consequences arising from parallel proceedings in Member States.” This is achieved through harmonization of some central aspects of criminal matters, including the ne bis in idem principle.
The CISA is part of the Schengen aquis which can be described as “roughly the accumulated body of law [which] includes the Schengen Treaty itself and its implementing Convention and other acts of implementation”. Integrated into the framework of the European Union with the Treaty of Amstersam by the Schengen Protocol the Schengen aquis declares that it is integrated “into the framework of the EU” and that it “shall immediately apply” to the Schengen States, following its entry into force. By integrating the Protocol of the Schengen into the framework of the European Union as an annex to the EU and the EC Treaty in 1997 by the Treaty of Amsterdam the original legal unity of the Schengen aquis as an international treaty is lost. From this time on the Schengen aquis was not an international treaty but part of EU law. The European Court of Justice (hereinafter the ECJ) held that it follows from this integration that the Schengen aquis cannot be longer interpreted with rules of International Public Law but rather by “taking the EU framework into account.” That means that from this time on the Schengen aquis was measured with EU law and completely subject of jurisdiction of the ECJ. Article 54 CISA was thus part of EU law and subject of the ECJ.
Since the original legal unity is lost and the Schengen aquis is now part of the framework of the European Union it is a legal category of its own. This can be seen for example with the position of Denmark, and the procedures of the United Kingdom and Ireland such as the association of Norway and Iceland (as not EU Member States) and the possibility of a differentiated application of a new Member States without a formal transitional period which shows that there is variation of the Schengen acquis. These are special features of Schengen Law which show that, as Kuijpers states: “There is a lot of variable geometry still hidden in the Schengen aquis.” That means that the Schengen aquis is not equal not other EU law, as Member States partly opted out and other States which are not Member of the European Union participate. This shows how complex “Schengen Law” is and indicates that its “place” in European Union Law is not easily determined with the consequence that the status of Article 54 CISA as part of the Schengen aquis cannot be easily determined either.
The ne bis in idem principle is furthermore codified in the Article 50 EuCFR. The Charter emerged out of a two-fold impetus. Firstly, it aimed to afford social rights the same status as other rights. Secondly, it aimed to make fundamental rights more “visible” in the European Union. As Chalmers noted “the Charter is [...] a statement of rights that are seen, in EU law at least as fundamental.” This indicated its ranking to other provisions ofEU law.
The draft of the Charter was adopted in 2000 and unanimously accepted by the European Council, however the status of the Charter was left open. Even though the Charter was not binding before the entering into force of Treaty of Lisbon, it played a significant role beforehand, when referring to fundamental rights in EU context as Advocate Generals and the General Court (now the Court of First Instance) referred to the Charter. Later the ECJ applied the Charter as a source. The pre-Lisbon use of the Charter shows its value and general importance. However, there were many notably discussions about the Charter and Member States feared it becoming legally binding. The Charter was adapted in the Treaty of Lisbon with the consequence of having it codified as a legally binding document, however, with pressure of some Member States there was left an opt-out option so that not all Member States are directly bound by the Charter. This was the only possibility to adapt the Charter in the Treaty of Lisbon with the consequence as having it as a binding document was to leave an opt-out option, used by some States. The United Kingdom and Poland benefited from the opt-out concerning the application of the EuCFR by protocol 30 They feared that the Charter impose some obligations, notably in social matters which could have negative effects for the economy or would be impossible to implement. With the entry into force of the Treaty of Lisbon the Charter became binding and has been, since December 2009, part of EU law. This opens the possibility for the ECJ to turn the pre-Lisbon “soft law” into “hard law”. Consequently it gives the ECJ the option to use the Charter as a legal source without the need to refer to other articles as a support, as the Charters' legal value had changed. Having the Charter as “hard law” and legally binding leads to the result that Article 50 EuCFR is legally binding as well and a source of same as Article 54 CISA an article regulating ne bis in idem in the European Union.
As has been demonstrated, both Articles derive from different sources of law which have different backgrounds. Article 54 CISA was incorporated in the Schengen aquis which was a measurement to ensure the area of free traveling in the Schengen area. Article 50 EuCFR as from the Charter, derives from the idea of making fundamental rights more “visible”. Hence, this law was created to protect fundamental rights and freedoms rather than the Schengen aquis. After showing the origins of Article 54 CISA and Article 50 EuCFR the next section will focus on these articles and their wording in order to show the differences and to provide a substance for the ongoing analyses of the ne bis in idem principle in the European Union.
1.3 Ne bis in idem-analysis and comparison of the relevant articles
This thesis analyses the scope of ne bis in idem in the European Union regarding the enforcement requirement. As shown with the Boere case the problem of how to understand the scope of ne bis in idem occurred recently because of the difference between the Article 54 CISA and Article 50 EuCFR. To illustrate the difference the wording of these articles is analysed in the following part.
Moreover, Article 4 of Protocol 7 ECHR will be discussed in order to determine the scope of ne bis in idem in regard to the enforcement requirement. Even though this article is not directly applicable in the European Union and has a different jurisdiction as not having the ECJ and the Court of First Instance but the European Court of Human Rights (hereinafter ECtHR), the ECHR has an impact as a general principle which has to be taken into account, see Article 6 (3) Treaty of the European Union (hereinafter TEU). The exact impact of Article 4 of Protocol 7 ECHR as a general principle and the influence and meaning of general principles is not discussed in this part as it focuses on the text of the articles and will be discussed in a latter part where the relation of Article 54 CISA and Article 50 EuCFR is analysed.
Article 54 CISA is the first article where the ne bis in idem principle in the European Union was codified and enshrines the right that:
“A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process ofbeing enforced or can no longer be enforced under the laws of the sentencing Contracting Party.”
Article 50 EUCFR expresses the concept as follows:
“No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.”
Article 4 (7) of the Additional Protocol of the ECHR reads as follows:
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”
One notices that this article’s wording is partly similar to that of Article 50 EuCFR. This similarity exists because the drafters of the Charter wanted to have the Charter as much as possible similar to the ECHR.
Each of these articles as dealing with the ne bis in idem principle can be divided into four constituent segments. They can be categorized as
- Territorial scope/scope of applicability
- Definition of the acts.
- pre-action/forebear of the authorities, which means the first act of the authorities
- post-action of the authorities, which is the second act of the authorities
Both Article 54 CISA and Article 50 EuCFR entail a cross-border element as they speak of “another contracting party”, or “within the Union”. The Contracting parties of the CISA are inter alia the EU Member States. The Charter applies to all Member States except from the UK, Poland and the Czech Republic. This means that in respect of the territorial scope of the principle of Article 50 EuCFR, it includes all EU Member States besides, the UK, Poland and the Czech Republic. Therefore Article 54 CISA and Article 50 EuCFR are in principle applicable regarding their territorial scope in the area of the EU. However, Article 4 of Protocol 7 of the ECHR states “in the same state”. That can be reasoned with the argument that the ECHR originates from a different jurisdiction and was not aiming as EU law to “combine” countries. Thus there is no cross-border element in the scope of Article 4 (7) of the Convention. Therefore this article does not have the same territorial scope as Article 54 CISA and Article 50 EuCFR and is not applicable in cross border situations.
If one considers the second requirement “acts” one must mention that the words chosen for “act” differ, “same acts” (Article 54 CISA), “same criminal offence” (Article 50 EuCFR) and “an offence” (Article 4 of Protocol 7 ECHR). However criminal acts are included in these different notions.
The third requirement namely the “pre-action or forbear of the authorities” describes the action which was made (or not made) by an authority as a reaction to the act of the accused. When one want to apply Article 54 CISA, the penalty has to “be imposed, or it must have been enforced or it must actually be in the process of being enforced or can no longer be enforced”. Such an enforcement requirement is not required by the text of Article 50 EuCFR. Instead this article provides that the offence must have been finally “acquitted or convicted”.
The threshold for the application of this article is accordingly lower, as it can be already applied in a second trial and does not entail an additional enforcement requirement. Consequently Article 50 EuCFR differs from Article 54 CISA in its scope as it enshrines the right not to be convicted twice instead of not to be punished twice. This enforcement requirement is also not a requirement of Article 4 (7) ECHR which has, regarding this requirement, the same wording as the Charter. As explained previously this difference is important as it has an impact on the applicability of the ne bis in idem principle and leads to the central discussion of this thesis, namely how to understand the application of the ne bis in idem principle in the EU, especially whether it entails an enforcement requirement.
 Judgment of the Bijzondere Gerichtshof te Amsterdam, file no. 358-12269-49, 18. October 1949, quoted after Landgericht Aachen, judgment of 23 March 2010, in Beck-Rechtsprechung (BeckRS) (2010) at 14176, Az: 52 Ks 45 Js 18/83 10/09.
 Landgericht Aachen, judgment of 23 March 2010, in Beck-Rechtsprechung (BeckRS) (2010) at 14176, Az: 52 Ks 45 Js 18/83 10/09.
 See A.G. Bot in Case C-261/09, Mantello, judgment of 16 November 2010, nyr, para 26.
 Ibid, para 27.
 See Kniebuhler, Transnational ne bis in idem, (Duncker & Humblot, 2005), p. 5.
 Charter of Fundamental Rights and Freedoms, O.J. 2000 C 364/1, later changed, see O.J. 2007 C 303/1.
 Treaty of Lisbon, O.J. 2007 C 303/1.
O.J. 1997 C340/93
See Protocol No. 2 to the Treaty of Amsterdam, ibid.
 General principles which are unwritten rules of law will be described in 2.4.2.
 The “Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols Nos. 11 and 14 with Protocols Nos. 1, 4, 6, 7, 12 and 13” is an international treaty which is signed by all Member States.
 Loof, “54 CISA and the Principles ne bis in idem, 15 Eur.J.Crime Cr.L.Cr.J. (2007), 309-334, 310.
 Joined Cases C-187 & 385/01, Gozutok and Brugge,  ECRI-1345, paras. 38-40.
 Which is the area of the States signed the Schengen Agreement.
 This is now be found at O.J. 2000 L 239/19. and between
 Aquis is a term used as a short form of aquis communataire and means originally community law, after the treaty of Lisbon the meaning entails EU law. Schengen aquis includes the Schengen Treaty itself and its implementing Convention and other acts of implementation.
 These Member States were Belgium, France, Germany, Luxemburg and the Netherlands, O.J. 2000 L 239/19, see also van Bockel, The ne bis in idem principle in EU law, (Wolters Kluwer, 2010), p. 61.
 Article 2 CISA reads: “Internal borders may be crossed at any point without any checks on persons being carried out.”
 Wagner, “The Integration of Schengen into the Framework of the European Union”, 25 LIEI (1998), 1-60, 5.
 Konstantinides, Crime within the Area of Freedom, Security and Justice, Konstantinides and Eckes (Eds.), (CUP 2011), p. 196.
 As seen in articles 48-69 CISA.
 Craig and de Burca, EU Law: Text cases and materials, (OUP, 2007), p. 231 footnnote 6.
 See Protocol No. 2 to the Treaty of Amsterdam, O.J. 1997 C 340/93.
 Cf. Art. 2 (1) Schengen Protocol, O.J. 1997 C 340/93.
 Thym, “The Schengen Law: A Challenge for Legal Accountablity in the European Union”, 8 ELJ 2002, 218-245, 220.
 Peers, EU JusticeandHome Affairs Law, (OUP, 1996),p. 48.
 Cf. Kuijper, Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis, 37 CML Rev. (2000), 345-366 (352).
 Even though Denmark signed the Schengen Agreement there are special options applied to them, see the introduction of Protocol (No 2).
 See Art. 4 and Art. 6 of the Protocol No 2, which show their special position and opt-in position during the incorporation of the Treaty of Amsterdam.
 As not being Member States of the EU.
 Cf. Delcourt, “The acquis communautaire: Has the concept had its day?”, 38 CML Rev. (2001), 829-870 (864).
 Supra note 27, Kuijper, 352.
 Cf. First protocol of the first meeting from the 17th of December 1999 and the second protocol of the second meeting from the 1 and 2nd February 2000 of the drafting committee; Chalmers, Davies and Monti, European Union Law, (CUP, 2010) p. 237.
 Supra note 33, Chalmers, p. 238.
 See O.J. 2000 C 364.
 Supra note 33, Chalmers, p. 237.
 See case A.G. Jacobs in Case C-263/02 P, Jego-Quere v. Commission,  ECR I-03425, para 19; A.G. Tizziano in Case C-173/99 R v. Secretary of State for Trade and Industry, ex parte BECTU,  ECR-I 4881, para 26.
 Case C-540/03, Parliament v. Council,  ECR I-5769; Case C-275/06, Promusciae v. Telefonica Espana,  ECRI-271.
 Cf. Piris, The Lisbon treaty, (CUP, 2010), p. 150, 154, Piris outlines for example the discussion regarding the Charter in the case of abortion.
 See Article 6(1) TEU.
 O.J.2010C 83/313.
 Supra note 40, Piris, p. 160 ff.
 O.J. 2010 C 83/313. Furthermore one must mention that also the Czech Republic negotiated that they can opt-out. Whether the opt-out makes a difference for the applicability of the ne bis in idem principle will not be matter of discussion in this thesis.
 The Charter was criticised in containing some obligations, notably in social matterers which could have negative effects for the economy or would be impossible to implement, see Piris, The Lisbon treaty, (CUP, 2010), p. 150.
 O.J.2007 306/01.
 Blanke, “The Protection of Fundamental Rights in Europe”, < http://www.europeanpubliclaw.eu/paper/261- herm-j-blanke-the-protection-of-fundamental-rights-in-europe.html> last accessed 16 March 2011.
 As the Treaty of Lisbon and with it the EuCFR entered into force on 1' December 2009.
 Cf. Husabn and Strandbakken, Harmonization of Criminal Law in Europe (Intersentia, 2005), p. 13.
 These similarity is: No one shall be liable to be tried or punished again in criminal proceedings/for an offence for which he or she has already been finally acquitted or convicted within the/ in accordance with the law.
 As it can be seen in Art. 52(3) and Art. 53 EuCFR which point out the close relation to the ECHR; Explanation of the presidency of the European Convent, O.J. 2004 C 310/453 458. See further supra note 22, Craig and de Burca, p. 416.
 It must be stressed that Article 50 EuCFR does not apply in the Member States who opted out as described in 1.2.
 Besides the Member States who took advantage of the opt-out option.
 It must be emphasized that the EUCR has a different jurisdiction than the CISA and the EuCFR and that it underlies the jurisdiction of an own court
 As it can be seen in the preamble of the ECHR.
 As can seen for Article 54 CISA e.g. in the following case, supra note 13, Gozutok and Brugge; for Article 4 of Prototocol 7 ECHR in the following case, Oliveira v. Switzerland, Application no. 25711/94, ECtHR 30 July 1998; Regarding Article 50 EuCFR the wording with criminal offence entails that criminal acts are included. For this thesis it is sufficient that criminal acts are ascertained.
 See Eser in Meyer (Ed.): Kommentar der Grundrechte der Europaischen Union, Art. 50 paras. 2, 14. Landgericht, Landgerichte (plural) are German regional courts, see supra note 2 LG Aachen.
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- Ne bis in idem EU Schengen Grundrechtecharta Doppelbestrafungsverbot Grundprinzipien der EU Artikel 54 SDÜ Article 54 CISA Article 50 EuCFR Artikel 50 GRCh non bis in idem EU Charter of Fundamental Rights and Freedoms EuCFR