Because of the freedom of states to assert their own jurisdiction in general and the great preference that EU legislative acts give to extensive jurisdiction in harmonised areas of criminal law, multiple proceedings for criminal acts will increase.
Although the need to prevent positive conflicts of jurisdiction is often recognised, there is as yet no piece of legislation that sets substantive, binding and rights-based criteria for the allocation of jurisdiction. The framework decision on conflicts of jurisdiction does admittedly not aim at advancing predictability for the individual through its negotiating procedure.
Cf. only van Bockel, ne bis in idem ; Mansdöfer, ne bis in idem ; Kniebühler, ne bis in idem ;
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Jagla, ne bis in idem ; Eser, in: Sieber et al. (eds.), Europäisches Strafrecht, § 36; Lööf 15 EJCCL (2007), p. 309; Klip, EU Crim inal Law, p. 231ss; van den W yngaert / Stessens, 48 ICLQ (1999), p. 779; Vervaele, 1 Utrecht Law Review (2005), p. 100.
This requirem ent is not reiterated in Art. 50 of the Charter. T he m eaning of this is under
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debate. Germ an courts still apply the criteria of Art. 54 CISA, see Landgericht Aachen of 08 Decem ber 2009, 52 Ks 9/08 (Strafverteidiger 2010, 237); Bundesgerichtshof of 25 October 2010, 1 StR 57/10 (BG HSt 57, 11), citing the Explanations relating to the Charter (OJ C 303/17 of 14.12.2007, p. 31); Bundesgerichtshof of 01 Decem ber 2010, 2 StR 420/10; upheld by the Bundesverfassungsgericht of 15 Decem ber 2011, 2 BvR 148/11; see for further details Böse, Gegenseitige Anerkennung unter Lissabon, p. 70ss.; id., GA 2011, p. 504ss.; Hackner, NStZ 2011, p. 426 ss.
Cf. Klip, EU Crim inal Law, p. 423; Juppe, Gegenseitige Anerkennung, p. 90 s.
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The only further legal barriers to Member States in their assumption and exercise of jurisdiction are ne bis in idem rules, mainly Articles 54 ss. of the Convention Implementing the Schengen Agreement (CISA) and now Article 50 of the Charter. There is a host of literature on the evolution and the meaning of the transnational ne
bis in idem,576 and it is not my aim to add to this. I will instead concentrate on the few aspects relevant for this study in trying to explain the function that the ne bis in idem principle has acquired over time, and why it is an inadequate mechanism to resolve most of the problems associated with conflicts of jurisdiction.
The ne bis in idem only applies to final sentences. This means, first of all, that multiple proceedings in different Member States are not avoided, which is both a waste of resources and a tremendous practical problem for an adequate defence strategy and the procedural rights of the suspect. But even if it were to be widened in scope so as to include lis pendens (other states would then have to stay their proceedings pending the outcome of the prosecution in the first state) this would still mean that mainly decisions to criminalise a certain act would prevail, because normally there is no prosecution without an offence. Additionally, Art. 54 of the CISA requires that, if a penalty has been imposed, ne bis in idem will not apply unless that penalty “has been enforced, is actually in the process of being enforced or can no longer be enforced [...]”.577 Thirdly, the ne bis in idem gives no consideration to the jurisdictional basis on which a decision rests. The question of which states’ criminal laws and jurisdictional rules will be recognised Union-wide is totally random, as it is generally the first final decision that will profit by the ne bis in idem,578 but if another
ECJ judgm ent of 28 Septem ber 2006, C-150/05 - Van Straaten; ECJ judgm ent of 28
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Septem ber 2006, C-467/04 - Gasparini.
state can beat it concerning the enforcement stage, it can still gain recognition. Ne
bis in idem, then, is not a means of allocating jurisdiction, and on deciding which
state should be able to determine if certain acts constitute a crime or not and if a certain person is guilty or not, but just a tool to lessen the negative effects of multiple proceedings while trying to uphold as far as possible state sovereignty.
Since it is the only mechanism of resolving these problems at the moment, however, the ECJ has taken a very proactive approach towards it. This has been mainly done through the link of Art. 54 CISA with the right to free movement. What is a very welcome development from the point of view of the individual cases and the fundamental rights of the defendants has none the less led to some inconsistencies that are new to the ne bis in idem framework. From a doctrinal point of view, and with regard to the increasing level of integration in criminal matters, it seem odd that ne
bis in idem, one of the most fundamental principles of criminal law, should be
interpreted with regard to the right to free movement instead of in accordance with its own specific function in a European criminal justice sphere. This might, however, change with Art. 50 of the Charter, as unlike the CISA, the Charter is not primarily created for dealing with the effects of lifting internal border controls. It is then possible to interpret a transnational ne bis in idem not mainly with regard to its effects on free movement, but its effect on the individual in a broader sense, similar to the national ne bis in idem.
From a systematic view, the current approach leads to contradictory results in practice. For example, the ECJ has repeatedly (and rightly) decided that Art. 54 CISA applies to acquittals as well as to convictions, also in cases where this was based on lack of evidence or on a time-bar.579 This leads to the paradoxical situation that a person who is threatened with prosecution in one Member State but is not guilty according to the laws of another Member state with jurisdiction, e.g. because his acts do not constitute an offence there, or the time-bar applies, can only wish that, through some mistake, he will be prosecuted, charged and acquitted in that other Member State. Then, he would fully benefit from the ne bis in idem. In a case where
As this is not norm ally a final decision within the m eaning of Art. 54 CISA.
580
As outlined above, Advocate General Sharpston used the G asparini case as an occasion
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to elaborate her differing understanding of the ne bis in idem. In her state-based approach, the dilem m a depicted is not a problem for the defendant’s fundam ental rights, but rather an incentive to undesirable “jurisdiction-shopping” by him , para. 104 of the opinion, and a threat to safety in the area of freedom , security and justice.
Feller, 16 Israel Law Review (1981), p. 40; see also above 6.5.2.5 for the Com m ission’s
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approach.
Oehler, Internationales Strafrecht, p. 130.
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the prosecution correctly determines beforehand not to bring charges, this would leave the first state free to charge that person.580 It should, however, not make any difference if a person is acquitted because of a time-bar, or if he is not even charged for that same reason. This is again one of the reasons why a common basis for the allocation of jurisdiction is necessary.581