Introduction

The recent ruling of the Court of Justice of the European Union (CJEU) in the case of Zoran Spasic (C-129/14 – PPU) has clarified the operation of the principle of “ne bis in idem” within the Schengen area. In the decision, delivered by all of the court’s 15 judges, it was held that a person whose trial has been fully disposed of in one State may not be prosecuted in another State for the same acts. However, where the penalty has not been enforced or is not in the process of being enforced, then the principle of ne bis in idemwill not apply and the second State may proceed to prosecution. This decision will make it more difficult for persons punished with a fine and a custodial sentence to escape prison by simply paying the fine and relocating to a different Schengen jurisdiction.

The decision in Zoran Spasic

Facts

In 2013, Zoran Spasic, a Serbian national, was facing prosecution in Germany for organised fraud committed in Milan, Italy in 2009 against a German national. In 2012, an Italian court had sentenced Spasic, in absentia, to a custodial sentence and a fine of €800 for the same organised fraud.

Spasic challenged the decision of the German prosecutor to prosecute on the basis that, in accordance with the principle of ne bis in idem (double jeopardy in common law jurisdictions), he could not be prosecuted in Germany as he had already received a final and binding sentence from the Italian court in respect of those acts. Spasic had paid the fine of €800 to the Italian court and, in support of his position, produced proof of the payment before the German court.

In particular, Spasic sought to argue that the restrictive provisions of Article 54 of the Convention Implementing the Schengen Agreement 1985 (“CISA”), which limit the operation of the ne bis in idem principle to cases where the penalty imposed “has been enforced” or “is actually in the process of being enforced…” (the “enforcement condition”), were incompatible with and could not restrict the principle of ne bis in idem as set out in the Charter of Fundamental Rights of the EU (the “EU Charter”).  The corresponding provision in the EU Charter provides only that “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…”, without any reference to such an enforcement condition.

Decision

In addressing the question of compatibility, the CJEU rejected Spasic’s argument and held that the additional enforcement condition laid down in Article 54 of CISA constituted a limitation of the ne bis in idem principle that was compatible with the EU Charter.  Furthermore, the enforcement condition was proportional and did not call into question the ne bis in idem principle, the purpose of which was to avoid a situation in which persons finally convicted in a Member State go unpunished.

The court also held that in cases where a custodial sentence and a fine are imposed as principal penalties, the payment of the fine alone is not sufficient to satisfy the condition that the penalty has been enforced or is in the process of being enforced within the meaning of CISA. Any other interpretation would lead to rendering the ne bis in idem principle meaningless and would undermine the effective application of CISA.  Since Spasic had only paid the fine, without serving the one year custodial sentence, the court concluded that the enforcement condition imposed by Article 54 had not been met and therefore Spasic could not avail himself of the protection afforded by the principle.

Comment

The decision confirms that, with respect to the Schengen area, where a court imposes a principal penalty consisting of imprisonment and a fine, payment of the fine alone will not be sufficient to argue that the penalty has been enforced for the purposes of the ne bis in idem protection in cross-border cases.  In so doing, the court has removed a potential loophole which would have allowed convicted persons to avoid a custodial sentence by moving jurisdiction.

Application of ne bis in idem in the UK

In English domestic law, the principle of ne bis in idem takes the form of the “autrefois” rule in the context of the rule against double jeopardy, such that a person may not be tried twice for the same offence, whether they were acquitted on the first occasion (autrefois acquit) or convicted (autrefois convict). The rule has been firmly established in the common law for many centuries and also operates as a potential bar in extradition proceedings (section 12 Extradition Act 2003).1

As for Schengen – while the UK has remained outside this free movement area, and continues to exercise border controls on all individuals seeking entry to the UK, it has over time chosen to take part in certain aspects of Schengen dealing with policing and law enforcement, most notably Article 54 of CISA.2  However, in July 2013 the UK exercised a block opt-out of certain EU police and criminal justice measures (including Article 54 of CISA) due, in part, to concerns about immigration and the prospect of having to accept the European Commission’s enforcement powers with regard to them. Although the UK Government simultaneously expressed an intention to opt back into a smaller set of measures in the future (such as Article 54 of CISA), any such re-opt in remains subject to unanimous approval by the EU Council.

While the UK’s wider status, therefore, with respect to the EU’s police and criminal justice measures remains uncertain, the principle of ne bis in idem, as reflected in English law in the form of double jeopardy, should of course remain unaffected. Indeed, it is a well-established and fundamental principle of law cited in English court decisions as early as the eighteenth century and which is reflected in many European constitutions and international conventions (such as, ECHR, Protocol No 7, Article 4; ICCPR, Article 14(7); Rome Statute of the ICC, Article 20).

Furthermore, the case of R v Thomas [1985] Q.B. 604 demonstrates that the English courts appear to have taken a view consistent with that of the CJEU in Zoran Spasic in relation to the question of enforcement in cases of previous conviction. In that case, Thomas was convicted by a court in Italy of aggravated fraud for having transferred a sum of money from his employer's bank account to an account opened in the UK for that purpose. In his absence, he was sentenced by the court in Italy to a fine and imprisonment. When he was subsequently charged in the UK for theft of the money from the English bank (which had a proprietary interest in it), the court held that although a conviction or an acquittal by a foreign court could be a bar to a subsequent English prosecution on the same facts, such a plea would not be available where the accused was not subject to a real risk or danger of punishment resulting from the foreign prosecution. Since Thomas had not been before the Italian court and could not be returned in the circumstances of that case (as at the time British nationals were exempt from extradition to Italy by virtue of the UK-Italy Extradition Treaty of 1873), the risk of him ever in fact suffering any such punishment as a result of the conviction in Italy was virtually non-existent and the plea of autrefois convict could not, therefore, succeed.

The court reaffirmed the underlying rationale of autrefois convict which is effectively to prevent duplication of punishment; if the plea of autrefois convict could be supported by a finding of guilt alone, a defendant might escape punishment altogether. To this extent, the English common law position appears consistent with the CJEU’s recent findings.

The enforcement condition in the context of both the ne bis in idem principle and autrefois rule in cases of previous conviction is an important feature of this potential bar to further prosecution and will continue to be so in a climate of transnational crime involving conspirators operating in several jurisdictions, as well as increased activism on the part of regulators and prosecutors.