CELEX: 62003CJ0469
Article 54 of the Convention implementing the Schengen Agreement
Principle ne bis in idem
Scope
Decision of a Member State's judicial authorities to discontinue prosecution by reason solely of the initiation of similar proceedings in another Member State

This reference for a preliminary ruling concerns 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; ‘the CISA’), signed
on 19 June 1990 at Schengen (Luxembourg).
The reference was made in the course of criminal proceedings against Mr Miraglia, who is charged with having organised, with
others, the transport to Bologna of heroin-type narcotics.
The legal background
The Convention implementing the Schengen Agreement
Under 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 establishing the European
Community by the Treaty of Amsterdam (‘the Protocol’), 13 Member States, amongst them the Italian Republic and the Kingdom
of the Netherlands, are authorised to establish closer cooperation among themselves within the scope of the Schengen
acquis
, as set out in the Annex to the Protocol.
The Schengen
acquis
thus defined includes, inter alia, the Agreement, signed in Schengen on 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. 13; ‘the Schengen Agreement’) and the CISA.
By virtue of the first paragraph of Article 2(1) of the Protocol, from the date of entry into force of the Treaty of Amsterdam
the Schengen
acquis
is to apply immediately to the 13 Member States referred to in Article 1 of the Protocol.
In accordance with the second sentence of the second paragraph of Article 2(1) of the Protocol, on 20 May 1999 the Council
adopted Decision 1999/436/EC determining, in conformity with the relevant provisions of the Treaty establishing the European
Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen
acquis
(OJ 1999 L 176, p. 17).  It is apparent from Article 2 of the decision, in conjunction with Annex A thereto, that the Council
selected Articles 34 EU and 31 EU, which form part of Title VI of the Treaty on European Union, ‘Provisions on Police and
Judicial Cooperation in Criminal Matters’, as the legal basis for Articles 54 to 58 of the CISA.
The latter make up Chapter 3, ‘Application of the
ne bis in idem
principle’, of Title III, ‘Police and Security’. In particular, they provide as follows:
‘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.’
European Convention on Mutual Assistance in Criminal Matters
Article 2(b) of the European Convention on Mutual Assistance in Criminal Matters, signed at Strasbourg on 20 April 1959 (‘the
European Convention on Mutual Assistance’), provides:
‘Assistance may be refused:
…
(b)

if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security,
ordre public
or other essential interests of its country.’
The Kingdom of the Netherlands has formulated the following reservation concerning Article 2(b) of the European Convention
on Mutual Assistance:
‘The Government of the Kingdom of the Netherlands reserves the right not to grant a request for assistance:
…
(b)
in so far as the request concerns a prosecution or proceedings incompatible with the principle
ne bis in idem
;
(c)
in so far as it relates to an investigation of facts for which the defendant is prosecuted in the Netherlands.’
The provisions of Netherlands law
In accordance with Article 36 of the Netherlands Code of Criminal Procedure:
‘1.

Where the criminal proceedings are not pursued, the trial court before which the case was last prosecuted may declare, at
the defendant’s request, that the case is closed.
2.

The court may reserve its decision on the request at any time for a certain period if the prosecuting authorities adduce evidence
demonstrating that the matter will still be prosecuted.
3.

Before the court gives its decision, it shall summon the person directly concerned of whom it is aware in order to hear his
views on the defendant’s request.
4.

The order shall be notified to the defendant forthwith.’
Article 255 of that Code provides:
‘1.

Where a case does not proceed to judgment, after the order declaring the case closed has been notified to the defendant, or
after he has been notified that no further action is to be taken, without prejudice in the latter case to Article 12i or 246,
no further proceedings may be taken against the defendant in respect of the same acts, unless new evidence is brought forward.
2.

Only statements made by witnesses or the defendant or documents, acts or official records which have subsequently come to
light and have not been examined can constitute new evidence.
3.

In such a case, the defendant can be summoned before the Rechtbank only after a preliminary judicial inquiry into that new
evidence …’ .
Finally, with regard to requests for mutual assistance in criminal matters, Article 552-l of the Netherlands Code of Criminal
Procedure provides:
‘1.

The request shall not be granted:
…
(b)
in so far as to grant it would serve to collaborate in proceedings or an action incompatible with the principle underlying
Article 68 of the Criminal Code and Article 255(1) of this Code;
(c)
in so far as it is made for the purposes of an inquiry concerning facts in respect of which the defendant is prosecuted in
the Netherlands …’.
The case in the main proceedings and the question referred for a preliminary ruling
In connection with an investigation conducted by the Italian and Netherlands authorities in cooperation, Mr Miraglia was arrested
in Italy on 1 February 2001 under an order for his pre-trial detention issued by the examining magistrate of the Tribunale
di Bologna.
Mr Miraglia was charged with having organised, with others, the transport to Bologna of 20.16 kg of heroin, an offence laid
down by and punishable under Articles 110 of the Italian Criminal Code and 80 of Presidential Decree No 309/90.
On 22 January 2002 the examining magistrate of the Tribunale di Bologna committed Mr Miraglia to be tried for that offence
and decided to replace his detention in prison by house arrest.  The Tribunale di Bologna later replaced house arrest by an
obligation to reside in Mondragone (Italy), and then revoked all detention measures, so that at present the defendant is at
liberty.
Criminal proceedings in respect of the same criminal acts were instituted concurrently before the Netherlands judicial authorities,
Mr Miraglia being charged with having transported about 30 kg of heroin from the Netherlands to Italy.
The defendant was arrested on that charge by the Netherlands authorities on 18 December 2000 and released on 28 December 2000.
On 17 January 2001 the Gerechtshof te Amsterdam (Netherlands) rejected the appeal brought by the prosecuting authorities
against the order of the Rechtbank te Amsterdam (Netherlands) dismissing their application for the defendant to be kept in
custody.
The criminal proceedings against Mr Miraglia were closed on 13 February 2001 without any penalty or other sanction’s being
imposed on him.  In those proceedings the Netherlands public prosecutor did not initiate a criminal prosecution of the defendant.
It is apparent from the file before the Court that that decision was taken on the ground that a prosecution in respect of
the same facts had been brought in Italy.
By order of 9 November 2001 the Rechtbank te Amsterdam awarded the defendant compensation for the damage suffered through
his having been remanded in custody and also the costs of the lawyers instructed.
By letter of 7 November 2002 the Public Prosecutor’s Office of the Rechtbank te Amsterdam refused the request for judicial
assistance made by the Public Prosecutor’s Office of the Tribunale di Bologna, taking as its ground the reservation formulated
by the Kingdom of the Netherlands with regard to Article 2(b) of the European Convention on Mutual Assistance in Criminal
Matters, given that the Rechtbank had ‘closed the case without imposing any penalty’.
On 10 April 2003 the Italian Public Prosecutor requested the Netherlands judicial authorities to provide information about
the outcome of the criminal proceedings against Mr Miraglia and the way in which the proceedings had been settled in order
to assess their significance for the purposes of Article 54 of the CISA.
By note of 18 April 2003 the Netherlands Public Prosecutor informed his Italian counterpart that the criminal proceedings
against Mr Miraglia had been stayed, but did not supply information considered sufficient by the Italian court conquering
the order made and its content.  The Netherlands Public Prosecutor stated that it was ‘a final decision of a court’ precluding,
pursuant to Article 225 of the Netherlands Code of Criminal Procedure, any prosecution in respect of the same criminal acts
and any judicial cooperation with foreign authorities, unless new evidence should be produced against Mr Miraglia.  The Netherlands
judicial authorities added that any request for assistance made by the Italian State would run foul of Article 54 of the CISA.
According to the Italian court, the Netherlands authorities decided not to prosecute Mr Miraglia on the ground that criminal
proceedings against the defendant had in the meantime been instituted in Italy for the same criminal acts.  That assessment
is ascribable to the ‘preventive’ application of the principle
ne bis in idem
.
Now, according to the Tribunale di Bologna, that interpretation of Article 54 of the CISA is mistaken, for it removes any
real opportunity for the two States concerned to take action so that the defendant’s responsibility could actually be examined.
Indeed, Article 54 of the CISA, thus interpreted, would at the same time prevent the Netherlands authorities from prosecuting
Mr Miraglia on the ground that proceedings were pending in Italy for the same acts, and the Italian authorities from determining
whether the defendant was guilty.
The Italian court adds that, even if it should not find, as the Netherlands authorities have done, a situation in which the
principle
ne bis in idem
applied and should decide to continue the proceedings, it would be forced to determine Mr Miraglia’s guilt or innocence without
the important benefit of the evidence gathered by the Netherlands authorities or their judicial assistance.
Those were the circumstances in which the Tribunale di Bologna decided to stay proceedings and to refer the following question
to the Court of Justice for a preliminary ruling:
‘Must Article 54 of the [CISA] apply when the decision of a court in the first State consists of discontinuing the prosecution
without any adjudication on the merits of the case and on the sole ground that proceedings have already been initiated in
another State?’
Concerning the question referred
By its question the Italian court seeks, in substance, to ascertain whether the principle
ne bis in idem
, enshrined in Article 54 of the CISA, is applicable to a decision of the judicial authorities of one Member State declaring
a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution on the sole ground that criminal
proceedings had been started in another Member State against the same defendant and for the same acts, without any determination
whatsoever as to the merits of the case.
It is clear from the actual wording of Article 54 of the CISA that a person may not be prosecuted in a Member State for the
same acts as those in respect of which his case has been ‘finally disposed of’ in another Member State.
Now, a judicial decision, such as that at issue in the case in the main proceedings, taken after the public prosecutor has
decided not to pursue the prosecution on the sole ground that criminal proceedings have been initiated in another Member State
against the same defendant and in respect of the same acts, but where no determination has been made as to the merits of the
case, cannot constitute a decision finally disposing of the case against that person within the meaning of Article 54 of the
CISA.
The aptness of that interpretation of Article 54 of the CISA is borne out by the fact that it is the only interpretation to
give precedence to the object and purpose of the provision rather than to procedural or purely formal matters, which, after
all, vary as between the Member States concerned, and to ensure that that article has proper effect.
It is in fact settled case-law that the objective of Article 54 of the CISA is to ensure that no one is prosecuted on the
same facts in several Member States on account of his having exercised his right to freedom of movement (Joined Cases C-187/01
and C-385/01
Gözütok and Brügge
[2003] ECR I-1345, paragraph 38).
Now, the consequence of applying that article to a decision to close criminal proceedings, such as that in question in the
main proceedings, would be to make it more difficult, indeed impossible, actually to penalise in the Member States concerned
the unlawful conduct with which the defendant is charged.
First, that decision to close proceedings was adopted by the judicial authorities of a Member State when there had been no
assessment whatsoever of the unlawful conduct with which the defendant was charged.  Next, the bringing of criminal proceedings
in another Member State in respect of the same facts would be jeopardised even when it was the very bringing of those proceedings
that justified the discontinuance of the prosecution by the Public Prosecutor in the first Member State.  Such a consequence
would clearly run counter to the very purpose of the provisions of Title VI of the Treaty on European Union, as set out in
the fourth indent of the first subparagraph of Article 2 EU, namely: ‘to maintain and develop the Union as an area of freedom,
security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect
to  … prevention and combating of crime’.
Consequently, the reply to be given to the question referred has to be that the principle
ne bis in idem
, enshrined in Article 54 of the CISA, does not fall to be applied to a decision of the judicial authorities of one Member
State declaring a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution on the sole ground
that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without
any determination whatsoever as to the merits of the case.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court.  Costs incurred in submitting observations to the Court, other than the
costs of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) rules as follows:
The principle
ne bis in idem
, enshrined 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, does not fall to be applied to a decision of the judicial
authorities of one Member State declaring a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution
on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for
the same acts, without any determination whatsoever as to the merits of the case.
[Signatures]
–
Language of the case: Italian.