Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision concerning the application of the "ne bis in idem" principle
Date: 2003-04-26
Institutions: Greece
Subjects: Greece, Schengen Agreement, human rights, mutual recognition principle, penalty

C 100/24

EN

Official Journal of the European Union

26.4.2003

II

(Preparatory Acts pursuant to Title VI of the Treaty on European Union)

Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision
concerning the application of the ‘ne bis in idem’ principle

(2003/C 100/12)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in
particular Article 29, Article 31(d) and Article 34(2)(b) thereof,

Having regard to the initiative of the Hellenic Republic (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

legal

(1) The principle of ‘ne bis in idem’, or the prohibition of
i.e. that no one should be prosecuted
double jeopardy,
the same acts and for
the same
or
tried twice for
is established as an individual right
criminal behaviour,
in international
instruments concerning human
rights, such as the Seventh Protocol to the Convention
for the Protection of Human Rights and Fundamental
Freedoms (Article 4) and the Charter of Fundamental
the European Union (Article 50) and is
Rights of
legal systems which are based on the
recognised in all
fundamental
concept of respect
freedoms.

for and protection of

(2) The principle of

‘ne bis

in idem’ assumes a special
significance at a time when transborder crime is on the
increase and problems of jurisdiction in connection with
criminal prosecutions are becoming more complicated.
furthermore
The
apparent
immigration and
extradition and within the framework of the European
Union and in agreements between the Union or certain
Member States and third countries.

this principle
in the areas of asylum,

importance

of

is

of

final

criminal

the Union,
account

(4) In the Programme of measures to implement the principle
of mutual recognition of decisions in criminal matters (4)
established by the Council and the Commission the ‘ne bis
included among the immediate
in idem’ principle is
in particular as regards the
priorities of
taking
judgments
into
delivered by a court in another Member State. Measure
No 1 in that programme recommends a reconsideration
of Articles 54 to 57 of the Convention implementing the
Schengen Agreement, which reiterate the corresponding
articles of the Convention between the Member States of
the European Communities on Double Jeopardy, signed in
Brussels on 25 May 1987, with a view to the full
recognition,
application of
which has, however, not been ratified by the Member
States.

the principle of mutual

(5) The Communication from the Commission to the
European Parliament and the Council of 26 July 2002
on the mutual recognition of final criminal
judgments
acknowledges the positive contribution of the application
of the ‘ne bis in idem’ principle to the mutual recognition
legal certainty
of
within the Union, which presupposes confidence in the
fact that judgments recognised are always delivered in
accordance with the principles of
legality, subsidiarity
and proportionality.

judgments and the strengthening of

level,

is recognised only at national

(6) In the legal systems of a number of States the principle of
‘ne bis in idem’
i.e.
vertically, observing the criminal procedure followed in
the State in question. Such recognition is provided for
either in constitutional provisions or in legal provisions
and is based:
(a) on Article 14(7) of the International
Covenant on Civil and Political Rights of 19 December
1966; and (b) on Article 4 of the Seventh Protocol to the
Convention for the Protection of Human Rights and
Fundamental Freedoms. Transnational application of the
principle, i.e. horizontally, is established by Articles 54 to
57 of Chapter 3 of the Convention implementing the
Schengen Agreement.

the Treaty of Amsterdam on an area of

(3) Point 49(e) of the Action Plan of the Council and the
Commission on how best to implement the provisions
of
freedom,
security and justice (3) provides that measures will be
established within five years of the entry into force of
the Treaty ‘for the coordination of criminal investigations
and prosecutions in progress in the Member States with
the aim of preventing duplication and contradictory
rulings,
the ne bis in
idem principle’.

taking account of better use of

(1) . . .
(2) . . .
(3) OJ C 19, 23.1.1999, p. 1.

(7) The application of the ‘ne bis in idem’ principle has thus
far raised many serious questions as to the interpretation
or acceptance of certain substantive provisions or more
general rules (e.g. the concept of idem) because of the
different provisions governing this principle
in the
various international legal instruments and the difference
in practices in national law. The aim of this Framework
Decision is to provide the Member States with common
legal rules relating to the ‘ne bis in idem’ principle in order
to ensure uniformity in both the interpretation of those
rules and their practical implementation.

(4) OJ C 12, 15.1.2001, p. 10.

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(8) Since the above objectives of the Framework Decision
cannot be sufficiently achieved by the Member States
and can therefore be better achieved at Union level, the
in accordance with the
Union may adopt measures,
In accordance with the
principle
this Framework Decision
principle of proportionality,
does not go beyond what
to
is necessary in order
achieve those objectives.

subsidiarity.

of

the provisions of

(9) As regards Iceland and Norway this Framework Decision
constitutes a development of
the
Schengen acquis within the meaning of the Agreement
concluded by the Council of the European Union and
Iceland and the Kingdom of Norway
the Republic of
concerning the association of those two States with the
implementation, application and development of
the
Schengen acquis (1) which fall within the scope of
Article 1(B) of Council Decision 1999/437/EC of 17
May 1999 on certain arrangements for the application
of that Agreement (2).

(10) The United Kingdom is taking part in this Framework
Decision in accordance with Article 5 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 and with Article 8(2) of Council Decision
2000/365/EC of 29 May 2000 concerning the request
of the United Kingdom of Great Britain and Northern
Ireland to take part in some of the provisions of the
Schengen acquis (3).

(11) Ireland is taking part

into the

the Protocol

Schengen acquis

in this Framework Decision in
integrating
accordance with Article 5 of
the
the
European Union annexed to the Treaty on European
Union and to the Treaty establishing the European
Community and with Article 6(2) of Council Decision
2002/192/EC of 28 February 2002 concerning Ireland's
request to take part in some of the provisions of the
Schengen acquis (4),

framework of

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

For the purposes of this Framework Decision:

(a) ‘criminal offences’ shall mean:

— acts which constitute crimes under the law of each

Member State,

(1) OJ L 176, 10.7.1999, p. 36.
(2) OJ L 176, 10.7.1999, p. 31.
(3) OJ L 131, 1.6.2000, p. 43.
(4) OJ L 64, 7.3.2002, p. 20.

— acts which constitute

administrative offences or
breaches of order that are punished by an adminis-
trative authority by a fine,
in accordance with the
national law of each Member State, provided that they
administrative
jurisdiction of
fall within the
authority and the person concerned is able to bring
the matter before a criminal court;

the

(b) ‘judgment’ shall mean any final

convicting

proceedings,

judgment delivered by a
in a Member State as the outcome of
criminal court
the
criminal
in
defendant or definitively terminating the prosecution,
law of each Member State,
accordance with the national
in a
and also any extrajudicial mediated settlement
criminal matter; any decision which has the status of res
judicata under national
law shall be considered a final
judgment;

acquitting

or

(c) ‘Member State of the proceedings’ shall mean a Member

State in which the proceedings took place;

(d) ‘lis pendens’

shall mean a case where,

in respect of a
criminal offence, a criminal prosecution has already been
brought against a person, without a judgment having been
delivered and where the case is already pending before a
court;

(e) ‘idem’ shall mean a second criminal offence arising solely
from the same, or substantially the same, facts, irrespective
of its legal character.

Article 2

Right of any person not to be prosecuted or convicted
twice for the same criminal offence

1. Whoever, as a result of committing a criminal offence,
has been prosecuted and finally judged in a Member State in
accordance with the criminal law and the criminal procedure
of that State cannot be prosecuted for the same acts in another
Member State if he has already been acquitted or, if convicted,
the sentence has been served or is being served or can no
the
longer be enforced,
Member State of the proceedings.

in accordance with the law of

2.
The procedure may be repeated if there is proof of new
facts or circumstances which emerged after the judgment or if
there was a fundamental error in the previous procedure which
could have affected the outcome of
in
accordance with the criminal law and the criminal procedure
of the Member State of the proceedings.

the proceedings,

Article 3

Lis pendens

If, while a case is pending in one Member State, a criminal
prosecution is brought in respect of the same criminal offence
in another Member State, the following procedure applies:

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(a) preference is given to the forum Member State which will
better guarantee the proper administration of justice, taking
account of the following criteria:

An exception which may be the subject of a declaration
4.
pursuant to paragraph 1 will not be applied if the Member
State concerned has asked for the same offences to be pros-
ecuted by the other Member State or has ordered the
extradition of the person involved.

(aa)

the Member State on whose territory the offence has
been committed;

(bb) the Member State of which the perpetrator

is a

national or resident;

(cc)

the Member State of origin of the victims;

(dd) the Member State in which the perpetrator was found;

(b) where a number of Member States have jurisdiction and
the possibility of bringing a criminal prosecution in respect
of a criminal offence based on the same actual events, the
competent authorities of each of those States may, after
consultation taking account of the criteria mentioned in
paragraph (a), choose the forum Member State to be
given preference;

are

(c) where preference is given to the forum of one Member
State, proceedings pending in the other Member States
shall be suspended until a final
judgment is delivered in
the Member State whose forum was preferred. Where
the
proceedings
competent authorities of
immediately
inform the corresponding authorities of the Member State
whose forum was preferred.
If for any reason no final
judgment is delivered in the Member State whose forum
was preferred, the competent authorities of the latter shall
without delay inform the corresponding authorities of the
first Member State which suspended proceedings.

suspended in a Member State,
that State shall

Article 4

Exceptions

Article 5

Accounting principle

If a new prosecution is brought in a Member State against a
person who has been definitively convicted for the same
offences in another Member State the period of deprivation
of freedom or fine handed down by that State in respect of
those offences shall be deducted from the sentence which he
would probably receive. As far as allowed by national law, any
penalties other than deprivation of freedom which have been
imposed, or penalties imposed in the framework of adminis-
trative procedures, shall also be included.

Article 6

Exchange of information between competent authorities

1.
If a prosecution has been brought against a person in a
Member State and the competent authorities of the latter have
reasons to believe that the charge concerns the same acts for
which he has been definitively convicted in another Member
State, those authorities shall request the relevant information
from the competent authorities of the Member State of the
proceedings.

2.
The requested information shall be provided as soon as
possible using all available technical means and shall be taken
into account in order to determine whether the procedure is to
be continued.

Each Member State shall make a declaration to the
3.
General Secretariat of
the Council and to the Commission
indicating the authorities which are authorised to request and
receive the information referred to in paragraph 1.

1.
A Member State may make a declaration informing the
General Secretariat of the Council and the Commission that it
is not bound by Article 2(1) and (2) if the acts to which the
foreign judgment relates constitute offences against the security
interests of that Member State or
or other equally essential
were committed by a civil servant of the Member State in
breach of his official duties.

Article 7

Application of broader provisions

The provisions of Articles 1 to 6 shall not preclude the
application of broader national provisions on the rule of ‘ne
bis in idem’ when it is connected with judgments delivered
abroad.

A Member State which makes a declaration pursuant to
2.
paragraph 1 shall specify the categories of offence to which the
exception may apply.

Article 8

Application

3.
A Member State may at any time revoke the declaration
concerning the exceptions set out in paragraph 1. Such revo-
cation shall be notified to the General Secretariat of
the
Council and to the Commission and will take effect from the
first day of the month following the date of notification.

1. Member States shall
comply with this Framework Decision before . . . (*).

take the measures necessary to

(*) Two years after the date of entry into force of this Framework

Decision.

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2. Member States shall transmit by the date referred to in
paragraph 1 at the latest to the General Secretariat of the
Council and to the Commission the text of the provisions
transposing into their national
law the obligations imposed
on them under this Framework Decision.

3.
On the basis of this information the Commission shall
submit before [. . .] a report to the European Parliament and
the Council on the application of this Framework Decision,
accompanied where necessary by legislative proposals.

The Council

4.
the measures
adopted by the Member States in order to comply with the
provisions of this Framework Decision.

shall assess before [. . .]

Article 9

Repeal

Articles 54 to 58 of the 1990 Schengen Convention shall be
repealed upon the entry into force of this Framework Decision.

Where a Member State transposes this Framework Decision
before that date, pursuant to Article 8(1), the provisions in
question shall cease to apply to the Member State concerned
from the date of transposition.

Article 10

Entry into force

This Framework Decision shall enter into force on the day of
its publication in the Official Journal of the European Union.

Done at Brussels, . . .

For the Council

The President

. . .

Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision
concerning the prevention and control of trafficking in human organs and tissues

(2003/C 100/13)

THE COUNCIL OF THE EUROPEAN UNION,

in human beings, including common definitions, incrimi-
nations and sanctions.

Having regard to the Treaty on European Union, and in
particular Articles 29, 31(e) and Article 34(2)(b) thereof,

Having regard to the initiative of the Hellenic Republic (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1) The Action Plan of the Council and the Commission on
how best to implement the provisions of the Treaty of
Amsterdam on an area of freedom, security and justice (3),
the Tampere European Council on 15 and 16 October
1999 and the Santa Maria da Feira European Council
on 19 and 20 June 2000, as listed in the scoreboard,
indicate or call for legislative action against trafficking

(1) OJ C . . .
(2) OJ C . . .
(3) OJ C 19, 23.1.1999, p. 1.

(2) Trafficking in human organs and tissues is a form of
trafficking in human beings, which comprises serious
violations of fundamental human rights and, in particular,
of human dignity and physical integrity. Such trafficking
is an area of activity of organised criminal groups who
often have recourse to inadmissible practices such as the
abuse of vulnerable persons and the use of violence and
threats. In addition, it gives rise to serious risks to public
health and infringes on the right of citizens to equal
access to health services. Finally, it undermines citizens'
confidence in the legitimate transplantation system.

relating

(3) Opposition to the sale of the human body and its parts
has been addressed repeatedly by many international
organisations and has been the subject of regulation by
international conventions. As early as 1978, the Council
of Europe in its Decision (78)29 on harmonisation of
legislation of Member
to removal,
States
grafting and transplantation of human substances, which
was adopted by the Committee of Ministers of the Council
of Europe on 11 May 1978, declared that no human
substance may be offered for profit. This declaration
the third Conference of European
was confirmed at
Health Ministers, which was held in Paris on 16 and 17
November 1987, the final statement of which stressed
that a human organ may not be offered for profit by
any organ exchange body, organ storage centre or any
other organisation or private individual.