62022CJ0058_RES
Case C‑58/22
Parchetul de pe lângă Curtea de Apel Craiova
(Request for a preliminary ruling from the Curtea de Apel Craiova)
Judgment of the Court (First Chamber) of 25 January 2024
(Reference for a preliminary ruling – Charter of Fundamental Rights of the European Union – Article 50 – Principle ne bis in idem – Criminal proceedings brought in rem – Order that no further action be taken adopted by a public prosecutor – Admissibility of subsequent criminal proceedings brought in personam for the same facts – Conditions that must be satisfied in order for a person to be regarded as having been finally acquitted or convicted – Requirement for a detailed investigation – No interview of a possible witness – No interview of the person concerned in the capacity of ‘suspect’)
Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – Request for an interpretation of the Charter of Fundamental Rights – National legislation constituting a measure implementing EU law – Jurisdiction of the Court
(Charter of Fundamental Rights of the European Union, Art. 51(1); Council Framework Decision 2003/568, Arts 2 and 4; Commission Decision 2006/928, Annex)
(see paragraphs 40-42)
Fundamental rights – Principle ne bis in idem – Conditions under which applicable – Existence of a prior final decision – Criteria for assessment – Preclusion of further prosecution – Final decision taken following a determination as to merits of the case preceded by a detailed investigation – Determination by the national court
(Charter of Fundamental Rights of the European Union, Art. 50)
(see paragraphs 48, 52, 61, 62, 64)
Fundamental rights – Principle ne bis in idem – Scope – Order that no further action be taken adopted by a public prosecutor’s office without examining the criminal liability of the accused person – Not included
(Charter of Fundamental Rights of the European Union, Art. 50)
(see paragraphs 70, 71, 73-75, operative part)
Résumé
Seised of a request for a preliminary ruling from the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania), the Court of Justice provides clarifications as to the two components, ‘bis’ and ‘idem’, of the principle ne bis in idem, enshrined in Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), (
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) in the context of a case in which criminal proceedings commenced against a person in the context of a second set of proceedings were closed owing to an order that no further action be taken adopted by a public prosecutor’s office, in the first proceedings, from which it is not apparent, on the basis of evidence, that the legal situation of that person as liable, criminally, for the facts constituting the offence prosecuted was examined.
On 30 April 2015, at a meeting of the cooperative company BX, the president of that company, NR, demanded that some of its employees pay a sum of money which she was required to pay, on pain of their contracts of employment being terminated. Her demand not having been satisfied, she issued and signed decisions terminating those contracts.
The employees concerned then brought two criminal complaints against NR, which were registered, respectively, with the Parchet de pe lângă Judecătoria Slatina (Public Prosecutor’s Office at the Court of First Instance, Slatina, Romania) under the reference 673/P/2016, and the Parchet de pe lângă Tribunalul Olt (Public Prosecutor’s Office at the Regional Court of Olt, Romania) under the reference 47/P/2016.
In case 673/P/2016, after having brought criminal proceedings in rem for the offence of extortion, the public prosecutor in charge of that case adopted, on the basis of a report of the police force in charge of the investigation, an order that no further action be taken (‘the order that no further action be taken in the case’). That order was not challenged by the complainants within the prescribed time limits. In addition, the request to reopen the proceedings made by the Chief Prosecutor was not confirmed by the pre-trial chamber of the court with jurisdiction.
In case 47/P/2016, criminal proceedings were brought in personam against NR for the offence of passive corruption, which resulted in the adoption, by the Tribunalul Olt (Regional Court, Olt, Romania), of a judgment sentencing NR to a suspended term of imprisonment. On an appeal brought by NR, that judgment was set aside by the Court of Appeal, Craiova, the referring court, by the judgment in a criminal matter No 1207/2020, on the ground of a purported infringement of the principle ne bis in idem enshrined in Article 50 of the Charter.
Seised of an appeal on a point of law brought by the Parchet de pe lângă Curtea de Apel Craiova (Public Prosecutor’s Office at the Court of Appeal, Craiova, Romania) against that latter judgment, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) considered, in essence, that the referring court was wrong to have concluded that the principle ne bis in idem was applicable since the order that no further action be taken in the case had not been preceded by any determination as to the merits of case 673/P/2016 and had not been duly reasoned, with the result that it could not be regarded as having resulted in the barring of any further public prosecution. That court therefore set aside criminal judgment No 1207/2020 and referred the case to the referring court for reconsideration.
In the context of that reconsideration, the referring court decided to refer a question to the Court regarding the applicability of the principle ne bis in idem enshrined in Article 50 of the Charter in circumstances such as those at issue in the main proceedings.
Findings of the Court
The Court recalls that the application of the principle ne bis in idem is subject to a twofold condition, namely, first, that there must be a prior final decision (the ‘bis’ condition) and, secondly, that the prior decision and the subsequent proceedings or decisions must concern the same facts (the ‘idem’ condition).
As regards the ‘bis’ condition, for a person to be regarded as someone who has been ‘finally acquitted or convicted’ in relation to the acts which he or she is alleged to have committed, within the meaning of Article 50 of the Charter, it is necessary, in the first place, that further prosecution has been definitively barred, in accordance with national law. In the present case, to the extent that, first, the order that no further action be taken in the case was not challenged by the complainants in the main proceedings within the prescribed time limits and, secondly, the request for confirmation of the re-opening of criminal proceedings ordered by the Chief Prosecutor of the Court of First Instance of Slatina was rejected, it appears that, in case 673/P/2016, further public prosecution was definitively barred and that the order that no further action be taken in the case has become final, subject to the verifications which it is for the referring court to make.
In the second place, for it to be possible to regard a person as having been ‘finally acquitted or convicted’ in relation to the acts which he or she is alleged to have committed, within the meaning of Article 50 of the Charter, it is necessary that the order barring further public prosecution was adopted following a determination as to the merits of case and not on the basis of merely procedural grounds. In the present case, the condition relating to the determination as to the merits of case 673/P/2016 may be regarded as satisfied by the order that no further action be taken in the case only to the extent that that order contains an assessment of the material elements of the offence alleged, such as, inter alia, an analysis of the criminal liability of NR, as the alleged perpetrator of that offence. The failure to interview witnesses present at the meeting of the cooperative company BX on 30 April 2015 could constitute an indication of the lack of such an examination, subject to the verifications which it is for the referring court to carry out.
As regards the ‘idem’ condition, it follows from the very wording of Article 50 of the Charter that that provision prohibits the same person from being tried or punished in criminal proceedings more than once for the same offence. In that regard, the Court states that in order to determine whether a person has been ‘finally acquitted or convicted’, within the meaning of that Article 50, it must be clear from the decision adopted that, during the investigation that preceded that decision, irrespective of whether that investigation was brought in rem or in personam, his or her legal situation as criminally liable for the acts constituting the offence being prosecuted was examined and, in the case of an order that no further action be taken, rejected. If that is not the case, which it is for the referring court to ascertain, the principle ne bis in idem does not apply and, consequently, that person cannot be regarded as having been finally acquitted, within the meaning of Article 50 of the Charter.
(
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)	According to that provision, ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law’.