Ne bis in idem in the area of freedom, security and justice in light of the spasic case

Abstract

The principle of ne bis in idem which may be defined as the right not to be tried or punished twice in criminal proceedings for the same criminal offence, is principally laid down in the Charter of Fundamental Rights of the European Union as well as in the Convention Implementing the Schengen Agreement. The CJEU’s interpretation of this principle has been constant from the beginning with the same logic characterising its’ case law. In light of the traditional cases focusing on ne bis in idem and mutual trust in the AFSJ, the CJEU changed its rationale in the Spasic Case, C-129/14 PPU Zoran Spasic [2014]. The Court reconsidered the possibility of starting a second prosecution for the same facts; it deemed it to be more effective in serving the security goal of the Community as a whole. Mutual Trust, together with ne bis in idem, is for the first time put aside to make way for security. The logic of the CJEU’s previous case-law was however restored in the later M. Case, C-398/12 M. [2014] as well as in Kussowski, C-486/14 Kussowski [2016]. This thesis will study the need for a conditioned ne bis in idem in light of the best interests of the AFSJ rather than the absolute ne bis in idem which has been reinstated in practice by the CJEU; this will lead to a proportionality assessment and a proposed regime in which both security and mutual trust could subsist while balancing the scale between the need for mutual trust and instruments of mutual recognition as means to reach enforcement of a judgment and the importance of security, avoidance of risk and impunity of criminals within the AFSJ while keeping in mind the imperative nature to the fundamental right to free movement.