Opinion of the Advocate General — ECLI:EU:C:2008:206
Date: 2008-04-08
Language of the case: German
Based on: Treaty on European Union (1992)
Subject matter: Justice and home affairs;Closer cooperation
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Ne bis in idem principle (Convention implementing the Schengen Agreement, Arts 54 to 58) 2. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Ne bis in idem principle (Convention implementing the Schengen Agreement, Art. 54) 3. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Ne bis in idem principle (Convention implementing the Schengen Agreement, Art. 54) 1. Since Article 54 of the Convention implementing the Schengen Agreement (CISA) does not provide that the person concerned must necessarily have been tried in the territory of the Contracting Parties, that provision, the purpose of which is to protect a person whose trial has been finally disposed of against further prosecution in respect of the same acts, cannot be interpreted as meaning that Articles 54 to 58 of the CISA are never applicable to persons who have been tried by a Contracting Party exercising its jurisdiction beyond the territory to which that Convention applies. (see para. 30) 2. Article 54 of the Convention implementing the Schengen Agreement (CISA), applied to a judgment in absentia delivered in accordance with the national legislation of a Contracting State or to an ordinary judgment, necessarily implies that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied. According to the actual wording of Article 54 of the CISA, judgments rendered in absentia are not excluded from its scope of application, the sole condition being that there has been a final disposal of the trial by a Contracting Party. However, the sole fact that the proceedings in absentia would, under the national law governing the proceedings in question, have necessitated the reopening of the proceedings if the person concerned had been apprehended while time was running in the limitation period applicable to the penalty, does not, in itself, mean that the conviction in absentia cannot be regarded as a final decision within the meaning of Article 54 of the CISA. (see paras 35, 37, 40) 3. The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the Schengen Agreement (CISA), is applicable to criminal proceedings instituted in a Contracting State against an accused whose trial for the same acts as those for which he faces prosecution was finally disposed of in another Contracting State, even though, under the law of the State in which he was convicted, the sentence which was imposed on him could never, on account of specific features of procedure of the law of that State, have been directly enforced. In that regard, the condition regarding enforcement referred to in that article is satisfied when it is established that, at the time when the second criminal proceedings were instituted against the same person in respect of the same acts as those which led to a conviction in the first Contracting State, the penalty imposed in that first State can no longer be enforced according to the laws of that State. (see paras 48, 52, operative part)