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Home Law Application of ne bis in idem principle is contrary to the Charter of Fundamental Rights application of the ne bis in idem is not contrary to the Charter of Fundamental Rights
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Rule that, in the Schengen area, the principle of ne bis in idem requires the penalty applied in a Member State has been served or is being served is not contrary to the Charter of Fundamental Rights. When punishment consists of a prison sentence and a fine, both pronounced primarily, only the fine performance is not enough to believe that the sentence was executed. According to the Convention implementing the Schengen Agreement (CISA), a person who has been finally judged by a State can not be prosecuted for the same offense in another state (the "ne bis in idem"). However, draft CISA provides that this principle applies only if the sentence imposed has been served or is being served or can no longer be enforced under the laws of the sentencing State (hereinafter "the execution condition"). Charter of Fundamental Rights of the European Union devoted, in turn, the ne bis in idem without making express reference to such conditie1 .Domnul Zoran Spasic, draft who has Serbian citizenship, draft is being prosecuted in Germany for committing a deception in Milan in 2009 (an individual have been stolen 40,000 euros in small denomination banknotes in exchange for 500 euro banknotes which subsequently proved to be false). draft In parallel, Mr. Spasic was convicted in Italy for committing the same offense draft to a penalty of imprisonment of one year accompanied by a fine of 800 euros. Mr. Spasic, who was already draft imprisoned in Austria for committing other crimes, paid a fine, but not executed custodial sentence.
Following a European arrest warrant issued by Germany, the Austrian authorities have handed Mr. Spasic German authorities. Mr. Spasic is in custody in Germany since the end of 2013, awaiting trial for the offense of fraud committed draft in Italy. Mr. Spasic argues that, under the principle of ne bis in idem can not be prosecuted for the same acts, as has already been pronounced against him in Italy, a sentintadefinitiva and enforceable. German authorities draft believe that, in light of the CISA, the ne bis in idem does not apply because the custodial sentence has not been carried out in Italy. Mr. Spasic answer that provided the performance provided by the CISA can not validly restrict the scope of the Charter of Fundamental Rights and must be set free, as he paid a fine of 800 euros and executed astfelpedeapsa applied.
In its judgment today, the Court, on application by the Oberlandesgericht NAĽrnberg, says the additional condition on enforcement contained in the CISA is a restriction of the ne bis in idem is compatible with the Charter of Fundamental Rights. draft Thus, in terms of the ne bis in idem explanations relating to the Charter expressly make reference draft to CISA, so that the latter restricts the valid principle of ne bis in idem principle enshrined in the Charter. draft On the other hand, the Court considers that the condition on enforcement under the CISA does not call into question the principle of ne bis in idem as such because it does not follow