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Court of Justice of the European Communities (including Court of First Instance Decisions) |
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Gozuetok (Justice and Home Affairs) [2003] EUECJ C-385/01 (11 February 2003) URL: http://www.bailii.org/eu/cases/EUECJ/2003/C38501.html Cite as: [2003] EUECJ C-385/1, ECLI:EU:C:2003:87, EU:C:2003:87, [2003] EUECJ C-385/01 |
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JUDGMENT OF THE COURT
11 February 2003 (1)
(Convention implementing the Schengen Agreement - Ne bis in idem principle - Scope - Decisions by which the Public Prosecutor definitively discontinues criminal proceedings, without the involvement of a court, once the accused has satisfied certain conditions)
In Joined Cases C-187/01 and C-385/01,
REFERENCES to the Court under Article 35 EU by the Oberlandesgericht Köln (Germany) and the Rechtbank van eerste aanleg te Veurne (Belgium) for a preliminary ruling in the criminal proceedings before those courts against
Hüseyin Gözütok (C-187/01)
and
Klaus Brügge (C-385/01),
on the interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19), signed on 19 June 1990 at Schengen (Luxembourg),
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen (Rapporteur) and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: H.A. Rühl, Principal Administrator,
after considering the written observations submitted on behalf of:
- Mr Gözütok, by N. Hack, Rechtsanwalt, (C-187/01),
- the German Government, by W.-D. Plessing, acting as Agent (C-187/01 and C-385/01),
- the Belgian Government, by A. Snoecx, acting as Agent (C-385/01),
- the French Government, by R. Abraham, G. de Bergues and C. Isidoro, acting as Agents (C-187/01),
- the Netherlands Government, by H. G. Sevenster, acting as Agent (C-187/01 and C-385/01),
- the Commission of the European Communities, by W. Bogensberger and C. Ladenburger (C-187/01) and by W. Bogensberger and R. Troosters (C-385/01), acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mr Gözütok, represented by N. Hack, of the German Government, represented by A. Dittrich, acting as Agent, of the Belgian Government, represented by A. Snoecx, J. Devadder and W. Detavernier, acting as Agents, of the French Government, represented by R. Abraham, of the Italian Government, represented by G. Aiello, avvocato dello Stato, of the NetherlandsGovernment, represented by C. Wissels, acting as Agent, and of the Commission, represented by W. Bogensberger and R. Troosters, at the hearing on 9 July 2002,
after hearing the Opinion of the Advocate General at the sitting on 19 September 2002,
gives the following
Legal background
'Article 54
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 enforced or can no longer be enforced under the laws of the sentencing Contracting Party.
Article 55
1. A Contracting Party may, when ratifying, accepting or approving this Convention, declare that it is not bound by Article 54 in one or more of the following cases:
(a) where the acts to which the foreign judgment relates took place in whole or in part in its own territory; in the latter case, however, this exception shall not apply if the acts took place in part in the territory of the Contracting Party where the judgment was delivered;
(b) where the acts to which the foreign judgment relates constitute an offence against national security or other equally essential interests of that Contracting Party;
(c) where the acts to which the foreign judgment relates were committed by officials of that Contracting Party in violation of the duties of their office.
2. A Contracting Party which has made a declaration regarding the exception referred to in paragraph 1(b) shall specify the categories of offences to which this exception may apply.
3. A Contracting Party may at any time withdraw a declaration relating to one or more of the exceptions referred to in paragraph 1.
4. The exceptions which were the subject of a declaration under paragraph 1 shall not apply where the Contracting Party concerned has, in connection with the same acts, requested the other Contracting Party to bring the prosecution or has granted extradition of the person concerned.
...
Article 58
The above provisions shall not preclude the application of broader national provisions on the ne bis in idem principle with regard to judicial decisions taken abroad.'
The main proceedings and the questions referred for a preliminary ruling
Case C-187/01
'Before the start of the court proceedings, the Public Prosecutor may impose one or more conditions for avoidance of a prosecution of any offences, other than those subject by statute to imprisonment of a term of more than six years, or any misdemeanours. There shall be a bar on further prosecution once those conditions have been fulfilled.'
'Is there a bar to prosecution in the Federal Republic of Germany under Article 54 of the CISA if, under Netherlands law, a prosecution on the same facts is barred in the Netherlands? In particular, is there a bar to prosecution where a decision by the Public Prosecutor's Office to discontinue proceedings after the fulfilment of the conditions imposed (transactie under Netherlands law), which under the law of other Contracting States requires judicial approval, bars prosecution before a Netherlands court?'
Case C-385/01
'Under Article 54 of the [CISA] is the Belgian Public Prosecutor's Office permitted to require a German national to appear before a Belgian criminal court and be convicted on the same facts as those in respect of which the German PublicProsecutor's Office has made him an offer, by way of a settlement, to discontinue the case after payment of a certain sum, which was paid by the accused?'
The questions referred for a preliminary ruling
Costs
49. The costs incurred by the German, Belgian, French, Italian and Netherlands Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the mainproceedings, a step in the actions pending before the national courts, the decision on costs is a matter for those courts.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Oberlandesgericht Köln and the Rechtbank van eerste aanleg te Veurne by orders of 30 March 2001 and 4 May 2001 respectively, hereby rules:
The ne bis in idem principle, laid down in Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed on 19 June 1990 at Schengen, also applies to procedures whereby further prosecution is barred, such as the procedures at issue in the main actions, by which the Public Prosecutor of a Member State discontinues criminal proceedings brought in that State, without the involvement of a court, once the accused has fulfilled certain obligations and, in particular, has paid a certain sum of money determined by the Public Prosecutor.
Rodríguez Iglesias
Schintgen
La Pergola
Macken
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Delivered in open court in Luxembourg on 11 February 2003.
R. Grass G.C. Rodríguez Iglesias
Registrar President
1: Languages of the case: German and Dutch.