C-187/01

OPINION OF RUIZ-JARABO — CASES C-187/01 AND C-385/01

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 19 September 2002 1

Table of contents

I — Introduction I -1349

II — The applicable European legislation I -1349

III — The facts, main proceedings and questions referred for a preliminary ruling I-1352

2. Article 54 of the Convention as a genuine expression of the ne bis in idem principle I -1357

3. The bases of the ne bis in idem principle. Its importance in the case-law of the Court of Justice I -1358

4. The penal settlement as an expression of the ius puniendi I -1361

A. Settlement procedures in the Member States I -1362

B. The aim and objective of the criminal settlement I -1365

C. The criminal settlement, a way of doing justice I -1366

G Ö Z Ü T O K AND BRÜGGE

I — Introduction 3. The doubts entertained by the Ober- landesgericht Köln and the Rechtbank van Eerste Aanleg te Veurne relate to Article 54. They wish to know whether the ne bis in idem principle, 5stated in that provision, is applicable when criminal proceedings have 1. The Schengen acquis comprises: been discontinued under the legal system of one of the signatory States as the result of a settlement agreed between the prosecuting authority and the accused.

(a) the Agreement, signed in Schengen, Luxembourg, on 14 June 1985 by the three States comprising the Benelux Economic Union, the Federal Republic of Germany and the French Republic, I I— The applicable European legislation on the gradual abolition of checks at their common borders (hereinafter 'the Schengen Agreement'); and

4. Article 1 of the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and to the Treaty estab- lishing the European Community (here- (b) the Convention implementing that inafter 'the Protocol'), authorised thirteen Agreement, signed on 19 June 1990 Member States, amongst them the Federal by the same contracting parties 2 (here- Republic of Germany, the Kingdom of inafter 'the Convention'). 3 Belgium and the Kingdom of the Nether- lands, 6 to establish closer cooperation within the scope of those legal provisions.

2. These questions, referred for a prelimi- nary ruling under Article 35 TEU, 4give the Court of Justice the opportunity to inter- 5. As stated in the preamble to the Proto- pret the Convention for the first time. col, the Schengen acquis is 'aimed at

10. Article 54 provides: 6. The second paragraph of Article 2(1) of the Protocol provides that, from the date of entry into force of the Treaty of Amster- dam, t h e Schengen acquis is to apply immediately to the 13 Member States referred to in Article 1. '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 of being 7. Taking the second paragraph of enforced or can no longer be enforced Article 2(1) of the Protocol as a basis, the under the laws of the sentencing Contract- Council adopted on 20 May 1999 ing Party.' Decisions 1999/435/EC and 1999/436/EC defining the Schengen Agreement and determining, in conformity with the rel- evant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each 11. Under Article 55: of the provisions or decisions which con- stitute the Schengen acquis. 7

'1. A Contracting Party may, when ratify- ing, accepting or approving this Con- vention, declare that it is not bound by 8. It is clear from Article 2 of, and Annex A Article 54 in one or more of the to, the second of those decisions that the following cases: legal basis for Articles 54 to 58 of the Convention is Articles 34 and 31 of the Treaty on European Union, which form part of Title VI, headed 'Provisions on police and judicial cooperation in criminal matters'. (a) where the acts to which the foreign judgment relates took place in whole or in part in its own terri- 7 — OJ 1999 L 176, pp. 1 and 17, respectively. tory; in the latter case, however,

'1. Where a Contracting Party charges a person with an offence and the competent authorities of that Contracting Party have 3. A Contracting Party may at any time reason to believe that the charge relates to withdraw a declaration relating to one or the same acts as those in respect of which more of the exceptions referred to in the person's trial has been finally disposed paragraph 1. of in another Contracting Party, those

I - 1351

OPINION OF RUIZ-JARABO — CASES C-187/01 AND C-385/01

authorities shall, if they deem it necessary, III— The facts, main proceedings and request the relevant information from the questions referred for a preliminary ruling competent authorities of the Contracting Party in whose territory judgment has already been delivered.

1. Case C-187/01

2. The information requested shall be 15. Mr Gözütok is a Turkish national who provided as soon as possible and shall be has lived for some time in the Netherlands taken into consideration as regards further where he ran a coffee-shop in the town of action to be taken in the proceedings Heerlen without the mandatory adminis- underway. trative authorisation. On 12 January and 11 February 1996 the Netherlands police searched the premises and seized certain quantities of hashish and marijuana. 8

19. On 13 January 1997 the Amtsgericht 'Is there a bar to prosecution in the Federal (District Court), Aachen, convicted the Republic of Germany under Article 54 of defendant of dealing in significant quan- the Schengen Implementing Convention if, tities of narcotics and sentenced him to a under Netherlands law, a prosecution on period of one year and five months' the same facts is barred in the Netherlands? imprisonment, suspended on probation.

20. Mr Gözütok and the Public Prosecutor appealed against the judgment. By decision In particular, is there a bar to prosecution of 27 August 1997, the Landgericht (Re- where a decision by the Public Prosecutor's gional Court), Aachen, discontinued pro- Office to discontinue proceedings, after ceedings on the ground that, under the fulfilment of the conditions imposed Article 54 of the Convention, the decision (Netherlands transactie), which under the taken by the Netherlands authorities to law of other Contracting States requires discontinue the case had the force of res judicial approval, bars prosecution before a judicata and, in accordance with that Netherlands court?' provision and with Article 103(3) of the Grundgesetz (Basic Law), constituted a bar to prosecution of the acts in the Federal Republic.

2. Case C-385/01 21. The above decision was contested by the Public Prosecutor's Office before the Oberlandesgericht Köln (Higher Regional Court, Cologne), on the ground inter alia that Article 54 of the Convention, in establishing the bar to a second prosecu- 23. Mr Brügge, a German national, caused tion, referred only to final judgments given Mrs Leliaert bodily injury which rendered by one of the Contracting Parties. her unfit for work.

'Under Article 54 of the Schengen Agree- ment of 19 June 1990, is the Belgian Public V — A note on the jurisdiction of the Prosecutor's Office permitted to require a Court of Justice under Article 35 TEU German national to appear before a Bel- gian criminal court and be tried on the same facts as those in respect of which the German Public Prosecutor's Office made him an offer, by way of a settlement, to 29. The Treaty of Amsterdam has extended discontinue the case after payment of a the jurisdiction of the Court of Justice to certain sum, which was paid by the give preliminary rulings to the third pillar accused?' (justice and home affairs) and opened the way for the Court, at the request of the national courts, to give rulings on the 9 — The legislative basis for that offer is found in Article 153a of the Strafprozeßordnung (German Code of Criminal Pro- validity and interpretation of framework cedure). decisions and decisions, on the interpre-

I - 1354

G Ö Z Ü T O K AND BRÜGGE

tation of conventions adopted for police give final decisions, the power becomes a and judicial cooperation in criminal duty. 11 matters and on the validity and interpre- tation of the measures implementing them (Article 35(1) TEU).

33. When Belgium signed the Treaty of Amsterdam, it made a declaration accept- 30. Under the Protocol and Council ing the jurisdiction of the Court of Justice Decisions 1999/435 and 1999/436, cited and has given all its courts and tribunals above, 10 Article 54 of the Convention may power to refer questions for a preliminary be interpreted in a preliminary ruling given ruling under Article 35 TEU. by the Court of Justice, whose jurisdiction on this point is contingent since, in order to be effective, it must be accepted by the Member States in accordance with the provisions of Article 35(2) TEU.

11 — See Article 1(2) of the Law on the jurisdiction of the C o u r t of Justice of the European Communities to give prelimi- nary rulings in criminal matters under Article 35 T E U (Gesetz betreffend die Anrufung des Gerichtshofes der Europäischen Gemeinschaften im Wege des Vorabent- scheidungsverfahrens auf dem Gebiet der polizeilichen Zusammenarbeit und der justitiellen Zusammenarbeit in Strafsachen nach Artikel 35 des EV-Vertrages; hereinafter 32. The Federal Republic of Germany has 'EuGH-Gesetz'). That decision of the German authorities is the consequence of Declaration N o 10 annexed to the opted to confer the power to refer questions Final Act of the Treaty of Amsterdam, according to which 'Member States may... reserve the right to make provisions for a preliminary ruling to all courts and in their national law to the effect that, where a question relating to the validity or interpretation of an act referred tribunals, but, in the case of those which to in Article 35(1) is raised in a case pending before a national court or tribunal against whose decision there is no judicial remedy under national law, that court or tribunal will be required to refer the matter to the Court of Justice.' 10 — See points 7 and 8 above.

I - 1355

OPINION OF RUIZ-JARABO — CASES C-187/01 AND C-385/01

35. On that premiss and since the questions sequences which should ensue with regard referred for a preliminary ruling do not to the discontinuance of the criminal affect any of the matters referred to in action. It falls to the Court of Justice only Article 35(5) TEU, 12 it is unquestionable to interpret the provision. Consequently, it that the Court of Justice has jurisdiction. cannot express a view on whether, once the criminal action has been extinguished in the Netherlands, that means that it is barred under the German legal system.

I - 1356

GÖZÜTOK AND BRÜGGE

39. In order to clarify the above questions common substratum formed by the objec- it is necessary to consider the scope of the tives pursued by the Schengen acquis, must aforementioned principle and, in particu- form the basis of the investigation. As the lar, its significance in the context of Commission points out in its written Article 54 of the Convention, by ascertain- observations, the Court of Justice should ing the objective and purpose of this suggest an independent interpretation of provision of the agreement. It is also Article 54 of the Convention. necessary to examine criminal procedures which are in the nature of a settlement and their effects, in relation to the wording of the provision which the Court of Justice is asked to interpret.

I - 1357

O P I N I O N O F RUIZ-JARABO — CASES C-187/01 AND C-385/01

lopment of a common area of freedom and 47. The aforementioned provision is a justice. The gradual abolition of common genuine expression of the safeguard in border controls is a necessary step on the question, which operates not only within path to achieving that objective. However, the same legal system but also takes effect the removal of administrative obstacles lifts when the prosecution is repeated in dif- the barriers for everybody, including those ferent legal systems. who take advantage of the reduction in security in order to expand their unlawful activities.

I - 1358

G Ö Z Ü T O K AND BRÜGGE

49. The principle rests on two pillars found ary to wait until the Walt Wilhelm 15 and in every legal system. One is legal certainty Boehringer 16cases for consideration of the and the other is equity. When the offender effect of the principle when the prosecution is prosecuted and punished, he must know is repeated under different legal systems. that, by paying the punishment, he has expiated his guilt and need not fear further sanction. If he is acquitted, he must have the certainty that he will not be prosecuted again in further proceedings.

53. Consistently with that approach, the Court of Justice has allowed a cartel to be 51. The Court of Justice applied the ne bis analysed from the point of view both of in idem principle for the first time in the Gutmann case, 14 which considered the fact that two sets of disciplinary proceedings 15 — Case 14/68 Walt Wilhelm and Others [1969] ECR 1. were brought against an official on the 16 — Case 45/69 Boehringer Mannheim v Commission [1970] ECR 769. See too Case 7/72 Boehringer Mannheim v same facts. However, that was a case in Commission — 'the Boehringer II case' — [1972] ECR which the double punishment was imposed 1281, and also the Opinion delivered in that case, o n 29 November 1972, by Advocate General Mayras. under the same legal system. It was necess- 17 — I shall shortly be delivering my Opinions in Cases C-213/00 P Italcementi v Commission, C-217/00 P Buzzi Unicem v Commission and C-219/00 P Cementir v Commission, in which I analyse the ne bis in idem principle within the sphere of competition law. 14 — Joined Cases 18/65 and 35/65 Gutmann v Commission of the EAEC [1966] ECR 103. 18 — Paragraph 3 of the judgment in Wilhelm, cited above.

I - 1359

O P I N I O N O F RUIZ-JARABO — CASES C-187/01 AND C-385/01

55. The Advocate General's statement can- not be taken out of context, a historical 56. The classic formulation of the ne bis in moment in which the spacial effect of idem principle requires that three identical criminal law, the expression of the sover- circumstances should be present: the same eignty of the States, revolved around the facts, the same offender and the same legal principle — the same value — to be pro- tected. 2 1 The decisive factor is not whether 19 — In actual fact, as I point out in the Opinions which I have cited in footnote 17, in the Wilhelm judgment the ne bis in the right to impose a penalty is exercised idem principle has not been applied. For the Court of under one legal system or under several Justice, the identity of the subject-matter to be p r o - tected — which is required for application of the rule — legal systems, but that, in order to know was not present in that case. On the other hand, it is clear from that judgment that, for Community case-law, even if whether an act may be punished more than the aforementioned principle is not applicable and t h e double sanction is lawful, 'a general requirement of natural once, the person exercising the power to justice... demands that any previous punitive decision must impose the penalty, must ascertain be taken into account in determining any sanction which is to be imposed' (paragraph 11). There is a similar provision whether, with the various penalties, the in Article 56 of the Convention. In those circumstances, even though mention is made to the application of the ne same legal principles are being protected or bis in idem principle (Anrechnungsprinzip or 'taking into whether, on the contrary, the values which consideration principle') in actual fact it is something else. As I have pointed out in the Opinions to which I have are being protected are different. referred, the maxim which focuses my attention is not a procedural rule which works as a palliative, in the interests of proportionality, when a person is prosecuted a n d punished twice for the same acts, but a fundamental safeguard for citizens, which prevents a second judgment 21 — In Case 137/85 Maizena [1987] ECR 4587, the Court of on tne same marter (Erledigungsprinzip or 'exhaustion of Justice denied that the ne bis in idem principle had been procedure principle'). infringed, because the two securities required from a person on the basis of identical facts did not have the same 20 — Part II(2), sixth paragraph of the Opinion. purpose (paragraphs 22 and 23).

59. It is contrary to the very concept of 61. Thus, when a person's trial in respect justice to deny the effectiveness of foreign of certain acts has been finally disposed of, criminal judgments. That approach would he cannot be tried again, irrespective of both undermine the fight against crimi- whether he was acquitted or convicted in nality and the rights of the convicted the first proceedings. person. Today, Advocate General Mayras' position would be untenable because it conflicts with the wording of Article 54 of the Convention, which reproduces Article 1 of the Brussels Convention of 25 May 1987 on the implementation of the ne bis in idem principle. 62. That statement leads to the key factor in the queries of the national courts. Where a settlement is reached in criminal proceed- ings, are the acts 'finally disposed of'? Or to put it another way: Is the settlement an 60. The above considerations are not expression of criminal justice? merely a device for stating what Article 54

22 — See Article 4 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 5 of the Charter of fundamental rights of the European Union (OJ 2000 C 364, p. 1). R. Koering-Joulin has pointed out that the ne bis in idem principle is so 63. The question must be clarified using fundamental a safeguard for the person that Article 4(3) of the abovementioned Protocol does not authorise any specific knowledge of the way settlements derogation, even in the case of war or other public danger which threatens the life of the nation; it is an absolute right operate in the justice system and the effects (La Convention européenne des droits de l'homme. Com- which are likely to be generated. In that mentaire article par article, Popular edition, 2nd edition, p. 1094). investigation it is essential to take a look,

66. In Belgium there are two kinds of procedure within the jurisdiction of the Public Prosecutor's Office: settlement and penal m e d i a t i o n , provided for in Articles 216a and 216b of the Code d'in- 64. Under German law 24 the Public Pros- struction criminelle, which allow the Pros- ecutor's Office may decide to discontinue ecutor to order the final discontinuance of criminal proceedings provided that the the proceedings if the accused fulfils certain offender consents and fulfils the obligations conditions. However, in the second sub- imposed on him. Although, as a general paragraph of paragraph 4 of the second of rule, the approval of the competent court is those Articles, it is provided that discon- required, it is not essential in the case of tinuance of a criminal action by penal minor offences punishable by a penalty mediation does not prejudice the right of which is not higher than the minimum victims or their successors to bring civil provided in the Criminal Code and if the proceedings. damage caused is slight. If there is agree- ment, the Prosecutor fixes a time-limit for fulfilment of what has been agreed and, once it has been fulfilled, the liability is finally extinguished and 'the offence cannot be prosecuted as a crime'. 25 67. The French legal system has a pro- cedure known as 'penal settlement', 2 8in 23 — For a detailed examination of the rules governing the various kinds of settlement in the Member States, reference which the Public Prosecutor's Office has may be had to the report prepared in 1996 by H. Labayle for DG X X of the European Commission, published by the the power to suggest to the perpetrator of Catania European Criminal Law Centre: La transaction an offence that the action will be discon- dans L'Union Européenne, Giuffrè Editore, 1998. It is now somewhat outdated, but still of interest. 24 — Article 153a of the Strafprozeßordnung, cited above. 25 — Paragraph 1 of the abovementioned Article 153a. The 26 — It is governed by Articles 90a to 90m of the Strafpro- German Criminal Code differentiates between a mis- zessordnung (Code of Criminal Procedure). demeanour (Vergehen) and a crime (Verbrechen). An offence punishable by a term of imprisonment of one year 27 —Articles 90c(5), 90d(5), 90f(4) and 90g(1) of the Straf- or more is a 'crime'. The others, which receive lighter prozessordnung. punishments, are 'misdemeanours'. 28 — Introduced by Law No 99-515 of 23 June 1999.

71. Ireland has means of preventing an offence being the subject of criminal pros- ecution, for various reasons. One example 68. Denmark provides 29 that, in the case of is the payment of a fine, 32 which puts an an offence punishable by a fine, the Public end to the matter. Prosecutor's Office may suggest to the defendant that the proceedings will be discontinued if he acknowledges his guilt and undertakes to pay a fine within a certain period. At the end of the two-month 72. Although under Italian law there is in period prescribed for reversal of the pro- general no settlement or penal mediation posal by a higher authority, the decision to (except for offences committed by minors), discontinue proceedings becomes final. there is a particular procedure called pat- teggiamento. 33 It is a special procedure which presupposes the existence of a settle- ment agreement in respect of both the proceedings and the sentence, which must not be more than two years long. On the other hand, the punishment may be con- 69. The Spanish legal system permits the ditional and, if the person receiving the accused to agree with the penalty sought by penalty fulfils the conditions imposed on the Prosecutor, in which case the court him, the sentence lapses after five years. pronounces sentence in accordance with Both the Prosecutor and the accused may the mutually agreed sanction. 30 introduce the patteggiamento procedure. In any event, the agreement must be ratified by a court.

70. Finnish law does not have a settlement 73. In Luxembourg, the Law of 6 May procedure as such; however, it does have 1999 has incorporated a paragraph 5 into measures in the nature of a settlement which may lead to the discontinuance of 31 — Laki rangaistusmääräysmenettelystä/ lagen om straff or- derförfarande 26.7.1993/692. 32 — Road Traffic Acts, 1961-1995; Litter Pollution Act, 1997, 29 — In Article 924 of the Code of Procedure. p. 2 8 . 30 — See Articles 655, 791 (3) and 793(3) of the Law of Criminal 33 — Governed by Articles 444 to 448 of the Código de Procedure. Procedimiento Penal.

75. In Portugal 34 proceedings may be tem- porarily suspended. This mechanism auth- orises the Public Prosecutor's Office to bring a halt to a criminal action by impos- ing certain obligations during a specific period. The decision is subject to the acceptance of the accused and, where appropriate, the prosecution and to the approval of the trial judge. Once the 77. Finally, there is in Sweden a procedure accused fulfils what has been agreed, the for imposing penalties without the inter- case is discontinued and cannot be re- vention of a court (staff öreläggande), 40 opened. 35 which is used for minor offences such as driving under the influence of alcohol and petty theft. If the Prosecutor's order is accepted by the accused (with the agree- ment of the possible victims), the imposi- tion of the penalty acquires the force of res 76. In the United Kingdom, there is a judicata. settlement procedure under English law in 36 — Section 52(1) of the Road Traffic Offenders Act 1988. 37 — 'A Review of the Criminal Courts of England and Wales.' 34 — See Articles 281 and 282 of the Código de Processo Penal and the particular case of the simplified procedure {pro- 38 — Article 302 of the Criminal Procedure (Scotland) Act 1995. cesso sumaríssimo), provided for in Articles 392 to 398 of 39 — Article 302(6). the same legal code. 40 — Chapter 48, Article 4 of the Rättegångsbalk (Criminal 35 — Article 282(3) of the Código de Processo Penal. Code) 1942.

I - 1364

G Ö Z Ü T O K AND BRÜGGE

B. The aim and objective of the criminal which is less socially reprehensible and settlement whose punishment does not require the full force of the State's penalising mechanism to be brought to bear nor, consequently, the full operation of the safeguards of criminal procedure through the intervention of a court. 78. In order to describe a legal institution, particularly if its field of operation is the branch of the law which most directly affects the dignity and basic values of the individual, it is necessary to avoid pointless nominalisms and consider its inherent nature.

I - 1365

OPINION OF RUIZ-JARABO — CASES C-187/01 AND C-385/01

82. With the settlement it is hoped to find does not have a 'dejudicialising' effect, such the most appropriate way of dealing with that a decision to settle does not fulfil the certain kinds of criminality, which do not criteria of Article 54 of the Convention. require the imposition of heavy sentences; a The phenomenon which some 43 have lighter, less traumatic reaction is enough. called 'judgeless justice', as if it were a This circumstance allows the accused, quasi private agreement does not arise. without having to undergo legal proceed- ings, to acknowledge his guilt, either expressly or implicitly, and to expiate it by fulfilling the condition which he has agreed with the Prosecutor, within the limits laid down by the legislature, which in any event will be less onerous than if an agreement is not reached and the criminal prosecution pursues its normal route. In return, the State abandons its action, which lapses. 85. The settlement is a means of resolving criminal cases by mutual agreement between the official bringing the criminal action and the accused, without the need for legal proceedings in the strict sense. Where a dispute is settled in this way, there is no bargaining between the offender and the Prosecutor for fixing the penalty. An C. The criminal settlement, a way of doing offer — which may be taken or left — is justice made by the State public authority through the official bringing the criminal proceed- ings to impose the penalty.

83. In this characterisation there are two features which cannot be ignored. The first is that the conditions which the accused fulfils are a punishment in retribution for his conduct. The second is that it is the State which is meting out the punishment, from a position of superiority. The accused is free to accept the settlement; if he does not do so, he must know that the criminal action will proceed. The tus puniendi is still 86. It is not an agreement which is negoti- the same, although it is exercised in a ated between the accused and the Public different way. Prosecutor, as Mr Gözütok's representative has pointed out, but a decision, which is actually less aggressive than a conviction, in which the ius puniendi is still manifest.

90. To sum up, a defendant who settles and 88. What is more, the settlement has an accepts the conditions imposed by the 'implicit judicial nature'; it is not an Prosecutor is convicted for the acts which, institution which is outside criminal justice; by accepting the punishment, he confesses its existence is only justified as a demon- he is guilty of committing. Once the agree- stration of the exercise of criminal justice. ment becomes firm, his case may be All criminal acts may be prosecuted by the regarded as finally disposed of and, because Public Prosecutor's Office 45 and punished he has fulfilled the conditions to which he after a fair trial. However, in some systems has agreed, the punishment may be con- the official entitled to bring the criminal sidered completed. Consequently, his case action is authorised, in respect of certain cannot be heard again because that is offences, to agree a penalty with the prohibited under Article 54 of the Con- defendant, on the firm understanding that vention. if the pact is not made, if the accused does

44 — It is not a civil settlement, in which the parties are in a fundamental position of equality. I take advantage of this call on the private law settlement to point out that, in several national legal systems, it has the force of res judicata. That is the case in French law (Article 2052 of the Civil Code), Belgian law (Article 2044 of the Civil Code) D. Protection of the rights of the individual and Spanish law (Article 1816 of the Civil Code). In the light of the above provisions, it is surprising that the Court in the criminal settlement of Justice, in Case C-414/92 Kleinmotoren [1994] ECR I-2237, stated that a civil settlement, even if concluded before a court, does not constitute a judgment within the meaning of Article 25 of the Brussels Convention.

97. To sum up, the settlement in criminal proceedings is a manifestation of the ius 94. For a start, the Public Prosecutor's Office is required to inform him that the settlement is optional and that he has the 47 — See Article 14 of the International Covenant on Civil and Political Rights, Article 7 of the Universal Declaration of right to be tried by an independent tribu- Human Rights, Article 6(1) of the European Convention on Human Rights and Article 47 of the Charter of fundamental rights of the European Union. 48 — See, for example, Golder v. United Kingdom, judgment of 46 — See Article 74(1) of the Netherlands Criminal Code and 21 February 1975, Series A no. 18, and Deweer v. Belgium Articles 216a and 216b of the Belgian Code d'instruction judgment of 27 February 1980, Series A no. 35. criminelle. 49 — See paragraph 51 of the judgment in Deweer, cited above.

I - 1368

G Ö Z Ü T O K AND BRÜGGE

puniendi, a form of administering justice operating the ius puniendi, which is an which protects the rights of the accused and alternative to the strictly jurisdictional culminates in the imposition of a penalty. function in relation to certain infractions. There is therefore no doubt that, through use of the procedure, a verdict is given on the acts being judged and on the guilt of the perpetrator.

101. From the moment the accused accepts the public representative's proposal and fulfils the conditions imposed, the State has 98. Since the rights of the individual are given its final response to the unlawful protected, it is irrelevant, in the context of conduct, so that a person who settles and the questions raised by the national courts, accepts the agreement, just as an accused in particular by the Oberlandesgericht whose case is disposed of in a non-appeal- Köln, and in spite of the approach taken able judgment, is entitled to expect that by the French Government, whether the there shall be no looking back, that the decision to discontinue the criminal action content of the settlement shall remain firm is approved by a court. and that he will not be troubled in the future in respect of the same acts.

is to say, the criminal action, but it is not which it is possible for joint actions to be capable of affecting actions which, like the brought before the criminal courts, when a civil action arising out of every criminal case is discontinued the injured party's infraction, may be brought by the victim right to bring the civil action before whom- or, more generically, the injured party. For ever and in whatever manner appropriate that reason, Articles 216a and 216b of the remains unaffected. Belgian Code d'instruction criminelle pro- vide that the discontinuance of criminal proceedings by penal mediation does not prejudice the right of victims or their successors to bring a civil action and the Netherlands legal code recognises the right of interested parties to appeal against the Prosecutor's decision before a court. 51 106. To sum up my arguments so far, I can say that Article 54 of the Convention applies to the criminal settlement since: (i) it is a means of exercising the ius puniendi of the State, (ii) it involves the delivery of an implicit final decision on the conduct of the accused and the imposition of penalis- ing measures, and (iii) it does not affect any 104. That is to say, under Article 54 of the right the victim may have to claim com- Convention the discontinuance of criminal pensation. proceedings in one Member State as a consequence of a settlement agreed and successfully executed is a bar to a criminal prosecution on the same facts in another Member State, but does not prevent a victim bringing a civil action before the relevant court.

109. When that provision speaks of a person whose case has been 'finally dis- posed of' ([a person who has been] recht- skräftig abgeurteilt, onherroepelijk vonnis, définitivement jugée, juzgada en sentencia firme, giudicata con sentenza definitiva or definitivamente julgado), in spite of the literal meaning of the Spanish version, it does not refer to a decision taken by a court in the form of a judgment delivered after proceedings providing all the safeguards laid down in Article 6 of the European Convention on the Protection of Human 108. If Article 54 is read with Article 58, it Rights, but, more generically, to any pro- may be seen that it does not so obviously nouncement made in the legal sphere, by refer only to legal decisions, that is, to a which the State's final word on the acts ruling given by a court or tribunal at the being prosecuted and the guilt of the end of legal proceedings conducted with all perpetrator is expressed, whether by a the safeguards of the adversarial procedure court in its role as judge, or by an examin- and rights of the defence. Article 58 allows ing magistrate as the result of his investi- the States signatory to the Convention to gations or by a Prosecutor bringing the approve provisions granting broader effect prosecution against the criminal acts. to the ne bis in idem principle with regard to 'judicial decisions' than that afforded by the preceding articles. In the French, Netherlands and German versions of the latter provision, the terms used are deci- sions judiciaires, vonnis and Justizentschei- dungen respectively,53 which suggests that the intention of the Contracting Parties was 110. This assessment is justified because the terms used by the various versions are 52 — The Spanish version uses the expression juzgada en sentencia firme. The English version reads 'finally disposed not homogenous, so that although the of' while the Italian and Portuguese versions use the approach taken by the abovementioned phrases giudicata con sentenza definitiva and definitiva- mente julgado respectively. Governments seems prima facie persuasive, 53 — The English text uses the words 'judicial decisions' the Italian version uses decisione giudiziarie and the Por- it is not so convincing if the lack of tuguese version decisioes judiciais. uniformity between the various versions

111. The strict interpretation suggested by the abovementioned governments may have absurd consequences. For example, a person who is acquitted in a final judgment because he has proved that he did not 113. The German Government maintains participate in the criminal acts could not be that Article 4 of Protocol 7 to the European prosecuted again in another Member State, Convention on Human Rights restricts the whereas a defendant who, at the investi- ne bis in idem principle to decisions taken gation stage, obtains from the examining by courts. That interpretation conflicts magistrate an order for the unconditional with the wider view taken by the European discontinuance of proceedings for the same Court of Human Rights, which considers reason could have the sword of Damocles that the aim of the provision 'is to prohibit of a further action hanging over his head. the repetition of criminal proceedings that The law must reject interpretations which have been concluded by a final decision. have consequences which are contrary to That provision does not therefore apply reason and logic. before new proceedings have been opened'. 55

freedoms in respect of the acts of public would have untoward consequences. bodies. When planning their cooperation in Indeed, I have pointed out that the settle- matters of security and justice, the Member ment procedure is a means of administering States have recognised the effect of the criminal justice in respect of minor or abovementioned principle in Article 54 et medium offences, but that it is not used in seq. of the Convention; that recognition the field of more serious crimes. Therefore, clearly constitutes a restriction on the the approach taken by the German, French exercise of the right to prosecute and and Belgian Governments would provide punish a criminal act. better treatment for the perpetrators of major offences, who would benefit from the ne bis in idem rule, than to the perpetrators of minor transgressions, which are less socially reprehensible. The perpe- trator of a more serious crime, who may be convicted only by a final judgment, could not be judged again in another State signatory to the Convention, quite unlike the perpetrator of a petty offence who has 115. The extent of this restriction must be accepted and completed the punishment defined from the citizen's point of view, suggested by the Prosecutor. since it is one of his safeguards. If it means that once he has been prosecuted, judged and, if convicted, punished by the imposi- tion of a penalty, the defendant has the right for no other signatory State to do the same. The form of the legal pronouncement and the manner in which it is given are of 117. Apart from that, in order to establish little importance provided that all the con- the scope of Article 54 of the Convention, it ditions and requirements fixed in the legal is irrelevant to examine the intention of the system under which the decision is legislature, in view of the fact that not even delivered are fulfilled. It would be ludicrous the Member States themselves are in agree- to argue that Article 54 of the Convention ment on that point. 56 can refer only to decisions taken by courts — that is to say, decisions delivered after proceedings conducted with all the safeguards —, and, precisely with that argument, to reduce the scope of appli- cation of one of those safeguards. 118. From the above it may be inferred that Article 54 of the Convention applies to a person who obtains from the Public Prosecutor's Office an order for the dis- continuance of criminal proceedings, once he has fulfilled the conditions which he has agreed with that representative of the State authority.

122. The objective stated in the Treaty on European Union, 57 of establishing an area 58 — Article 31(a) EU. 59 — In paragraph 33 of the Conclusions of the meeting of the of freedom, security and justice, requires European Council held in Tampere on 15 and 16 October 1999, it is stated: 'Enhanced mutual recognition of judicial decisions and judgments and the necessary approximation of legislation would facilitate cooperation between auth- orities and the judicial protection of individual rights. The 5 7 — In the fourth indent of Article 2 EU one of the objectives is European Council therefore endorses the principle of stated as 'to maintain and develop the Union as an area of mutual recognition which, in its view, should become the freedom, security and justice, in which the free movement cornerstone of judicial cooperation in both civil and of persons is assured in conjunction with appropriate criminal matters within the Union. The principle should measures with respect to external border controls, asylum, apply both to judgments and to other decisions of judicial immigration and the prevention and combating of crime'. authorities.'

I - 1374

GÖZÜTOK AND BRÜGGE

equivalent to a decision by one's own State Member States would have to be based o n because it reflects the same principles and the principle that a decision taken by n o values. Mutual trust is an essential element matter which authority in the EU fully in the development of the European Union: deals with the issue and that no further trust in the adequacy of one's partners' decision needs to be taken at all... In other rules and also trust that these rules are w o r d s , if someone was convicted o r correctly applied. 60 acquitted... in Member State A, he should not be prosecuted... in Member State B, even if Member State B has jurisdiction over the facts... and even if in Member State B, a different judgment could have been pronounced...' 61

I - 1375

O P I N I O N O F RUIZ-JARABO — CASES C-187/01 A N D C-385/01

130. The abovementioned document is not 132. I think that, on the contrary, the a legislative provision which binds the Council's most recent pronouncements Court of Justice. At most, it is an extra show that its intention is very far from interpretive element which cannot be con- that which the Belgian Government seeks sidered in isolation, without account being to attribute to it after a cursory reading of taken of other constituents — much more the abovementioned Programme. decisive for the Court's exercise of its judicial function, which is 'to state the law' and interpret the provisions which make up the Community legal system —, like those which I have presented throughout this Opinion: the rationale of Article 54 of the Convention, the bases of the ne bis in idem principle, the nature of settlement pro- cedures and the process of European inte- gration, which requires ever closer cooper- ation between the Member States, in the terms stated by the Council in the Pro- gramme.

I - 1376

GÖZÜTOK AND BRUGGE

VII — Conclusion

134. In accordance with the foregoing considerations, I propose that the Court of Justice should state, in reply to the questions submitted by the Oberlandesgericht Köln and the Rechtbank van Eerste Aanleg te Veurne, that: the ne bis in idem principle stated in Article 54 of the Convention implementing the Schengen Agreement on the gradual abolition of checks at the common borders also applies when criminal proceedings are discontinued under the legal system of one Contracting Party as the consequence of a decision taken by the Public Prosecutor's Office, once the defendant has fulfilled certain conditions — and it is irrelevant whether that decision has to be approved by a court — provided that:

(1) the conditions imposed are in the nature of a penalty;

(2) the agreement presupposes an express or implied acknowledgment of guilt and, accordingly, contains an express or implied decision that the act is culpable; and