Case C‑398/12

M

(Request for a preliminary rulingfrom the Tribunale di Fermo)

‛Convention implementing the Schengen Agreement — Article 54 — ‘Ne bis in idem’ principle — Scope — Order made by a court of a Contracting State finding that there is no ground to refer a case to a trial court because of insufficient evidence — Possibility of reopening the criminal investigation in the case where new facts and/or evidence come to light — Concept of person whose trial has been ‘finally disposed of’ — Criminal prosecution in another Contracting State of the same person in respect of the same acts — Preclusion of further prosecution and application of the ne bis in idem principle’

Summary — Judgment of the Court (Fourth Chamber), 5 June 2014

Judicial cooperation in criminal matters — Protocol integrating the Schengen acquis — Convention implementing the Schengen Agreement — Ne bis in idem principle — Scope — Decision of a Contracting State that there is no ground to refer a case to a trial court because of insufficient evidence — Definitive nature — Criteria for assessment — Assessment made on the substance, reopening of the case on the basis of the same body of evidence excluded and prosecution as time-barred — Included

(Convention implementing the Schengen Agreement; Art. 54)

Article 54 of the Convention implementing the Schengen Agreement must be interpreted as meaning that an order making a finding that there is no ground to refer a case to a trial court which precludes, in the Contracting State in which that order was made, the bringing of new criminal proceedings in respect of the same acts against the person to whom that finding applies, unless new facts and/or evidence against that person come to light, must be considered to be a final judgment, for the purposes of that article, precluding new proceedings against the same person in respect of the same acts in another Contracting State.

In that regard, in order to determine whether a judicial decision constitutes a decision finally disposing of the case against a person, within the meaning of that article, it is necessary to be satisfied that that decision was given after a determination had been made as to the merits of the case. Such is the case of a decision of the judicial authorities of a Contracting State by which an accused person is definitively acquitted because of the inadequacy of the evidence which excludes any possibility that the case might be reopened on the basis of the same body of evidence and which means that further prosecution is definitively time-barred.

The possibility of reopening the criminal investigation if new facts and/or evidence become available cannot affect the final nature of the order making a finding of ‘non-lieu’. That possibility involves the exceptional bringing of separate proceedings based on different evidence, rather than the mere continuation of proceedings which have already been closed. Furthermore, any new proceedings against the same person for the same acts can be brought only in the Contracting State in which that order was made.

(see paras 28-31, 40, 41, operative part)

Case C‑398/12

M

(Request for a preliminary rulingfrom the Tribunale di Fermo)

‛Convention implementing the Schengen Agreement — Article 54 — ‘Ne bis in idem’ principle — Scope — Order made by a court of a Contracting State finding that there is no ground to refer a case to a trial court because of insufficient evidence — Possibility of reopening the criminal investigation in the case where new facts and/or evidence come to light — Concept of person whose trial has been ‘finally disposed of’ — Criminal prosecution in another Contracting State of the same person in respect of the same acts — Preclusion of further prosecution and application of the ne bis in idem principle’

Summary — Judgment of the Court (Fourth Chamber), 5 June 2014

Judicial cooperation in criminal matters — Protocol integrating the Schengen acquis — Convention implementing the Schengen Agreement — Ne bis in idem principle — Scope — Decision of a Contracting State that there is no ground to refer a case to a trial court because of insufficient evidence — Definitive nature — Criteria for assessment — Assessment made on the substance, reopening of the case on the basis of the same body of evidence excluded and prosecution as time-barred — Included

(Convention implementing the Schengen Agreement; Art. 54)

Article 54 of the Convention implementing the Schengen Agreement must be interpreted as meaning that an order making a finding that there is no ground to refer a case to a trial court which precludes, in the Contracting State in which that order was made, the bringing of new criminal proceedings in respect of the same acts against the person to whom that finding applies, unless new facts and/or evidence against that person come to light, must be considered to be a final judgment, for the purposes of that article, precluding new proceedings against the same person in respect of the same acts in another Contracting State.

In that regard, in order to determine whether a judicial decision constitutes a decision finally disposing of the case against a person, within the meaning of that article, it is necessary to be satisfied that that decision was given after a determination had been made as to the merits of the case. Such is the case of a decision of the judicial authorities of a Contracting State by which an accused person is definitively acquitted because of the inadequacy of the evidence which excludes any possibility that the case might be reopened on the basis of the same body of evidence and which means that further prosecution is definitively time-barred.

The possibility of reopening the criminal investigation if new facts and/or evidence become available cannot affect the final nature of the order making a finding of ‘non-lieu’. That possibility involves the exceptional bringing of separate proceedings based on different evidence, rather than the mere continuation of proceedings which have already been closed. Furthermore, any new proceedings against the same person for the same acts can be brought only in the Contracting State in which that order was made.

(see paras 28-31, 40, 41, operative part)