1. The EAW, ne bis in idem and article 54 CISA EAW Conference The Hague, 16 th June 2006

2. The EAW and ne bis in idem Art 3(2) EAW-FD: mandatory ground for refusal where the person has been finally judged in respect of the same acts, and the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing state Art 4(2), (3) and (5) EAW-FD: optional grounds for refusal

3. The EAW and art 54 CISA Art 54 CISA A person may not be prosecuted in another member state where his or her trial for the same acts has been finally disposed of, and where 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 law of the sentencing state

4. Interpretation of art 54 CISA by the ECJ Cases already decided: Gözütök/Brügge (C-187/01; C-318/01) Miraglia (C-469/03) van Esbroeck (C-436/04) Pending cases: Gasparini (C-476/04; A-G opinion on 15 June 06) van Straaten (C-150/05; A-G opinion on 8 June 06) Bouwens (C-272/05) Kretzinger (C-288/05) Kraajinbrink (C-376/05)

5. Interpretation of art 54 CISA by the ECJ Issues addressed by the ECJ (and the Advocates General in van Straaten and Gasparini) so far: When is there a final disposal of a case ? What has to be understood as being the same facts (idem) ?

6. Interpretation of art 54 CISA by the ECJ Guiding principles in the Court’s purposive approach to art 54 CISA: Objective of art 54 CISA: legal certainty and equity, not just proportionality (van Esbroeck; van Straaten) Autonomous interpretation (Gözütök/Brügge; Miraglia) Mutual trust and recognition (Gözütök/Brügge)

7. Final disposal of a case Three questions arise: Which body can finally dispose of a case? Are only the courts or also the prosecuting authorities competent to finally dispose of a case for the purposes of art 54 CISA? Will the decision to be accorded finality under art 54 CISA have to be based on a (cursory) review of the merits of a case? In how far will purely procedural decisions leading to the termination of a case come within the scope of art 54 CISA? Which role plays the fact that a decision enjoys (at least limited) finality under the lex fori?

8. Final disposal – the cases Gözütök/Brügge (C-187/01; C-318/01) The exact nature of the body disposing of a case is not material to the issue of final disposal as long as a state actor in the criminal justice system avails itself of its ius puniendi and does not negotiate the mode of disposal with the defendant (autonomous interpretation element) The disposal has to penalise the unlawful conduct the defendant is alleged to have committed (merits element) Finality is recognised under national procedural law (mutual recognition element)

9. Final disposal – the cases Miraglia (C-469/03) Not simply any judicial decision with domestic final effect will be recognised as final disposal within the meaning of art 54 CISA (autonomous element) Closing of a case with final effect under domestic law purely on ground of a concurrent prosecution for the same facts in another member state without any merits assessment and without the possibility to render legal assistance to the trial state cannot be considered final disposal (merits element) No mutual recognition aspect!

10. Final disposal – the remaining questions Relationship between the three elements of the disposal jurisprudence remains unclear: In how far is the final disposal under art 54 CISA an independent concept of EU law and in how far will account be taken of the finality of a decision under member state laws? (autonomous interpretation vs mutual recognition) Which role plays the merits review criterion? Is it the limiting criterion for the mutual recognition approach - as emergency brake?

11. Final disposal – the cases Van Straaten (C-150/05; A-G opinion of 8 June 2006) Both court convictions and acquittals count as final disposal as long as the trial state avails itself of its ius puniendi by conducting a merits review (merits element) Merits element in acquittal cases is satisfied where the evidence does not justify a conviction – but may also be satisfied in cases of acquittals for reasons of age of criminal responsibility or perhaps even for reasons of a time bar (in effect mutual recognition element?)

12. Final disposal – the cases Gasparini (C-476/04; A-G Sharpston, opinion of 15 June 2006) “Degree of contradiction” between previous cases dealing with relationship between mutual recognition element and autonomous interpretation of art 54 CISA Conflicting principles: Free movement vs high level of safety (art 29 TEU) Mutual recognition vs autonomous interpretation

13. Final disposal – the cases Gasparini (C-476/04; A-G Sharpston, opinion of 15 June 2006) A-G’s approach (in contradiction to A-G Colomer’s opinion in Van Straaten): Mutual recognition in Third Pillar (as in EC law, eg free movement of goods) presupposes certain degree of common standards or understanding: esp in criminal law there has to be EU-wide agreement on matters pertaining to delicate areas of sovereignty In absence of consensus, widely diverging deliberate choices of member states in the field of criminal law have to be recognised Examples for lacking common standards: time-bars (continental concept) and age of criminal responsibility

14. Final disposal – the cases Gasparini (C-476/04; A-G Sharpston, opinion of 15 June 2006) A-G’s approach (in contradiction to A-G Colomer’s opinion in Van Straaten): Strict application of mutual recognition principle would lead to de facto harmonisation on lowest common denominator Final disposal criterion: autonomous concept: jeopardy test: person is only put in jeopardy where there is a substantive assessment of merit trial does not necessarily have to reach verdict stage but requires at least a“significant consideration of merits” of the case

15. Final disposal – the cases Gasparini (C-476/04; A-G Sharpston, opinion of 15 June 2006) Which consequences of this approach for EAW case in ECJ, esp with regard to the issue of the removal of the dual criminality protection and vastly differing definitions of certain offences under national law (eg euthanasia, drug trafficking, holocaust denial)?

16. Final disposal – the remaining questions A tentative conclusion (on the basis of Gözütök/Brügge and Miraglia, perhaps also van Straaten) : Under the principle of mutual recognition final decisions under national law will be considered as final disposal under art 54 CISA: Where a national judicial decision does not enjoy finality, it will be unlikely to be considered as final disposal under CISA Only where national finality runs counter fundamental considerations of justice will the merits criterion be used to correct the application of the mutual recognition principle (as in the Miraglia case)

17. Case studies: Final disposal Is surrender blocked under art 3(2) EAW-FD? General scenario: An EAW for trial is issued for a person who has been subject to criminal proceedings for the same facts in a third EU member state. Specific constellation: In the third member state, the sought person was tried for the same facts before a judge and jury. After the jury failed to reach a majority verdict for conviction or acquittal (at least 10:2), the judge discharged the jury and discontinued the trial. The prosecution did not seek a retrial, which the judge could have ordered.

18. Same act: in theory 1. Two different causes 2. Three different possibilities to determine if it is the same act: - Legal qualification - Protected legal interest - Material (historical) act

19. Same act – European solutions - Proposal for a Framework decision on ne bis in idem - Article 4, seventh Protocol ECHR - Article 54 CISA

20. Same act – The cases Two Cases: Van Esbroeck (C-436/04) Van Straaten (C-150/05) (Opinion A-G)

21. Same act – The Cases Van Esbroeck The only relevant criterion to determine whether it is the same act is the material (historical) act. Why dismiss the legal qualification or the protected legal interest?

22. Same act - The cases Two reasons: 1. Wording of article 54 CISA 2. Principles of the European Union: Mutual recognition Legal certainty Equity?

23. Same Act – The Cases What constitutes a material act? The material act constitutes of a set of facts that are inextricably linked together in time, in space and by their subject matter.

24. Same Act – The Cases Opinion of the A-G in the Van Staaten-Case - Same time, same space and same intention - Opinion of the A-G in the Gasparini-Case - Import and selling the same acts? - Art. 54 epressly not meant to apply in the context of a single uniform legal system.

25. Same act – remaining question What are the consequences of the choice made by the ECJ to use the material act as the criterion te determine whether it is the same act? Is this choice in all cases acceptable? Did the court let legal certainty and the freedom of movement prevail over justice? Or is the definition of the material act enough indistint to make sure that there will be justice in out Area?

26. Case studies – same act (pending cases) An EAW is issued for a person who previously has been ‘tried’ for an offence in another Member State. The execution of the EAW has to be refused if the act for which the surrender is asked for and the act the person already was tried for are the same. But when do we speak of the same act?

27. Case studies – same act (pending cases) a) does a conviction for being in possession of contraband foreign tobacco and not paying import duty for this tobacco (in Italy) prevent a person from being surrendered (to Germany) in order to be prosecuted for evasion of import duty in another Member State (Greece)? b) does a conviction for handling stolen goods (in this case: drug money) in one Member State prevent a person from being surrendered to another Member State tot be prosecuted for handling stolen goods and money laundering (the same drug money). The first conviction consisted of the possession and transfer of foreign drug money. The surrender is asked for the acts of converting the drug money at exchange offices.