Exceptions to the Ne Bis in Idem Principle in the Context of Articles 54 and 55(1)(b) CISA and Compatibility of Declarations Not to be Bound by that Principle with Articles 50 and 52(1) CFREU

Introduction

The interstate application of Article 54 CISA is predicated on the ‘same acts’ constituting an offence under the criminal law of Contracting Parties. Article 55(1)(b) CISA provides that a Contracting Party may, when ratifying, accepting or approving the Convention, ‘declare’ not to be bound by Article 54 where the ‘acts’ to which the judgment of another state relates constitute an ‘offence’ against national security or other equally significant interests. When ratifying the CISA, Germany made a ‘reservation’ pursuant to Article 55(1)(b) CISA declaring not to be bound by Article 54 CISA where the ‘acts’ to which the foreign judgment relates constitute an ‘offence’ provided for in section 129 of the German Criminal Code entitled ‘Forming criminal organisations.’

Criminal proceedings against MR (Generalstaatsanwaltschaft Bamberg) ¹ involved a request for a preliminary ruling from the Higher Regional Court, Bamberg concerning the validity of Article 55(1)(b) CISA exception to Article 54 CISA and whether that exception is compatible with Article 50 CFREU. The request was made in criminal proceedings brought in Germany against MR for offences including formation of a criminal organisation and investment fraud. The CJEU examined whether the requirements of Article 52(1) CFREU concerning limitations on fundamental rights had been satisfied and concluded that Article 55(1)(b) CISA exception to the application of the principle was compatible with Article 50 CFREU. States could bring a second prosecution for essentially the same act/offence following a judgment in another state where the alleged prohibited conduct threatens national security or equivalent interests such as organised financial crime. The CJEU judgment is the first interpretation of the validity and scope of exceptions to the application of the ne bis in idem principle under Articles 54 and 55(1)(b) CISA and compatibility of those provisions with Articles 50 and 52(1) CFREU. This article examines the significance and implications of the judgment within the area of freedom, security and justice of the EU.

Relevant facts and questions referred

MR was accused of having formed and participated in a criminal organisation with a cross-border dimension and whose prohibited conduct caused financial harm to multiple victims in Germany and in Austria. MR was convicted in Austria and while serving his sentence in that state, the Local Court, Bamberg, issued an arrest warrant against MR based on allegations of forming a criminal organisation and investment fraud in Germany. A European arrest warrant (EAW) was subsequently issued. MR claimed that both arrest warrants contravened Article 54 CISA because the same acts constituted the basis of a conviction against MR by the Regional Court, Vienna (for which MR was sentenced to four years’ imprisonment for investment fraud, money laundering offences) and membership of a criminal organisation within the meaning of section 129 of the German Criminal Code (for which the accused was subsequently prosecuted). On appeal, the Regional Court, Bamberg rejected this contention on the basis that Article 54 CISA was not applicable because Germany made a reservation in accordance with Article 55(1)(b) CISA when ratifying the CISA. The Regional Court determined that Germany is not bound by Article 54 CISA where the acts to which the foreign judgment relates constitute an offence against national security and other equally essential national interests that include offences specified in section 129 of the German Criminal Code. The Regional Court ruled that the sentence imposed on MR by the Regional Court, Vienna concerned the acts of fraud committed to the detriment of victims in Austria whereas MR was subsequently being prosecuted for acts of fraud committed against victims in Germany. Since both criminal proceedings did not concern the same victims, they did not constitute the ‘same act’ within the meaning of Article 54 CISA and same ‘offence’ within the meaning of Article 50 CFREU. The Regional Court ruled there was no impediment to prosecution under German law and overruled the Local Court judgment as being unfounded. In essence, the German national arrest warrant concerned financial losses incurred to victims in Germany, whereas the judgment of the Regional Court, Vienna concerned financial losses incurred to victims in Austria. Furthermore, unlike the Local Court ruling, the Regional Court questioned whether there is any impediment against a subsequent prosecution under EU law. On further appeal, the Higher Regional Court did not agree with the Regional Court ruling, ordered a stay on the criminal proceedings and referred two questions to the CJEU for a preliminary ruling on whether reservations by Germany under Article 55(1)(b) CISA were valid and consistent with Article 50 CFREU.

The first question referred to the CJEU for a preliminary ruling concerned whether Article 55(1)(b) CISA is compatible with Article 50 CFREU and whether Article 55(1)(b) CISA continues to be valid as an exception to the principle that a Contracting Party may when ratifying, accepting or approving the CISA, declare that it is ‘not bound’ by Article 54 CISA where the acts to which the foreign judgment relates constitute an offence against national security or other equally significant interests. The second question referred to the CJEU for a preliminary ruling concerned whether Articles 54 and 55(1)(b) CISA were compatible with Articles 50 CFREU and 52(1) CFREU and whether these provisions preclude German courts interpreting the reservation made by Germany when ratifying the CISA that the reservation includes criminal organisations that engage exclusively in financial crime. ²

The questions referred by the Higher Regional Court to the CJEU for a preliminary ruling concerned whether there is any impediment to prosecution under EU law, which if established, would result in the national arrest warrant being annulled for lacking a legal basis. Consequently, the EAW would be null and void as not having a legal basis.

The question of whether there is any impediment to prosecution was conditional on whether the German arrest warrant and the EAW had been issued to prosecute MR for an act in for which he was previously convicted and sentenced (enforcement condition of Article 54 CISA required more than a sentence to prevent an avoidance of punishment) by the Austrian authorities. If there was no impediment to prosecution under German law, the issue for consideration is whether there is any procedural impediment under EU law based on Article 54 CISA and Article 50 CFREU. If there is a legal impediment then it would be necessary to clarify whether Article 54 CISA would still be relevant in criminal proceedings against MR. Significantly, Article 54 CISA would not apply if the reservation made by Germany under Article 55(1)(b) CISA when ratifying CISA remain valid. The accused would therefore be liable to prosecution and sentence in Germany based on the same act/offence for which the same accused had formerly been convicted and sentenced in Austria.

Opinion of the advocate general

Advocate General (AG) Szpunar considered the referred question of whether the reservation made by Germany based on Article 55(1)(b) CISA, with the consequence that Germany would not be bound by Article 54 CISA, is compatible with the right not to be tried or punished twice in criminal proceedings for the same offence guaranteed in Article 50 CFREU commensurate with the scope and interpretation of limitations of such rights and principles provided for in Article 52(1) CFREU. The AG concluded that such declarations are incompatible with Article 50 CFREU and provisions referred to in such declarations cannot be applied in judicial proceedings, based on two propositions.

First, the AG advanced the proposition that the reservation made by Germany made based on Article 55(1)(b) CISA is incompatible with the principle expressed as a fundamental right under Article 50 CFREU in conjunction with limitations under Article 52(1) CFREU. The basis for this proposition was that the reservation made by Germany was not ‘provided for by law’ as required under Article 52(1) CFREU since the instruments of ratification, acceptance or approval should have been deposited with the Government of Luxembourg, which shall notify all the Contracting Parties in compliance with Article 139 CISA. The AG propounded the legal opinion that since the German reservation was not published at EU level, the requirements of accessibility and foreseeability in the application of relevant laws were not satisfied.

Secondly, the AG advanced the proposition that Article 55(1)(b) CISA enables states to proceed with a subsequent prosecution, conviction and sentence despite a former conviction (verdict finality) that has been enforced (enforcement condition of Article 54 CISA), which in the AG’s opinion undermines the very essence of the principle contrary to Article 52(1) CFREU.

Regarding the second question referred, the AG advanced the proposition that Articles 54 and 55(1)(b) CISA being compatible with Articles 50 CFREU and 52(1) CFREU preclude an interpretation under which the reservation made by Germany pursuant to Article 55(1)(b) CISA includes criminal organisations that engage exclusively in financial crime.

The legal opinions advanced by AG Szpunar proposed that declarations made by states under Article 55(1)(b) CISA regarding the contexts wherein states would not be bound by the principle should not be enforced under EU law. The AG advanced the proposition that the very ‘essence of the principle’, ³ expressed as fundamental right under Article 50 CFREU, supersedes and effectively nullified the reservation made by Germany. Moreover, with the gradual development of the principles of mutual trust, mutual recognition and the entry into force of the CFREU, the exceptions provided for in Article 55(1)(b) CISA are effectively redundant. The AG advanced the proposition that the CJEU should rule that declarations made based on Article 55(1)(b) CISA are not compatible with Articles 50 and 52(1) CFREU, and provisions referred to in such declarations should not be applied in criminal proceedings. The AG based these propositions on significant developments in the ‘area of freedom, security and justice has come a long way since the adoption of the CISA’ which clearly advances the supremacy of the principle as a fundamental right under Article 50 CFREU. ⁴

CJEU judgment

The CJEU (Fifth Chamber) confirmed the validity of Article 55(1)(b) CISA exception in the context of offences against national security or other equally essential state interests. The judgment is significant in that it represents a substantial disagreement by the CJEU with the legal opinion propounded by the AG. The context of the first question referred did not affect the validity of Article 55(1)(b) CISA in the light of Article 50 CFREU. ⁵ Regarding the second question, the CJEU concluded that Article 55(1)(b) CISA, read in conjunction with Articles 50 and 52(1) CFREU, does not prevent national courts from interpreting the declaration made by a state under Article 55(1) CISA as meaning that, concerning the offence of forming a criminal organisation, that state is not bound by Article 54 CISA where the criminal organisation in which the accused participated has engaged exclusively in financial crime, in so far as the prosecution of that accused is, in the light of the actions of that organisation, intended to punish harm to the security or other equally essential interests of that state. ⁶

The CJEU ruled that the ‘essence’ of the principle was preserved under the exception in Article 55(1)(b) CISA that permits states to prosecute and punish for offences against the security or other equally essential interests of the state concerned and therefore to pursue different objectives from those for which the accused has formerly been prosecuted and punished in another state. ⁷ Moreover, the exception under Article 55(1)(b) CISA was deemed to be proportionate for states to achieve the general objective of punishment for harm to state security or other equally essential interests. In that regard, where a state has derogated from Article 54 CISA the legal provisions must only affect the accused and is limited to what is strictly necessary in order for the state stated to achieve the objective of punishing harm to state security or other equally essential interests of the state concerned. ⁸

The stated idem factum criterion for differentiating between offences within the meaning of Article 50 CFREU is the ‘identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together’ ⁹ ‘in time and space’; ¹⁰ however, the principle ‘is not intended to be applied where the facts at issue are not identical, but merely similar.’ ¹¹ Article 50 CFREU prohibits the imposition, with respect to identical facts, of several criminal penalties because of different proceedings brought for those purposes. ¹² The broader same facts assessment affords greater protection for the accused as opposed to a narrower same elements of offences assessment - at least concerning cross border crime. The CJEU opined that the referring court has jurisdiction to assess the facts to determine whether the acts which are the subject of the prosecution in Germany are the same as the facts concerning the final judgment in Austria. While this interpretative analysis is not the function of the CJEU, national courts should nonetheless receive appropriate guidance concerning approaches to interpretation regarding EU law in the context of judicial assessments between the identity of the same acts/offences. ¹³ Consistency of approach by all states to the interpretation and application of EU law in this regard, commensurate with national laws, is required in accordance with the principles of legality, accessibility and foreseeability, especially considering acts/offences with a cross-border dimension. Notably, in BV ¹⁴ the CJEU determined that accused persons must not only be cognisant of the words and phrases of the relevant provisions but also of the judicial interpretative analysis by national courts, concerning whether prohibited conduct together with the clarity and precision of the exceptions to the principle.

Determinations of whether the dispute pending before a national court is incorporated within the scope of the principle requires the referring court to assess the extent to which the sentence imposed by the Regional Court, Vienna was based on the same acts as those of which surrender of the same accused has been requested under the EAW issued by the Local Court, Bamberg, or, on the basis solely of the acts of fraud committed against victims in Austria, and not of those that were detrimental to victims in Germany. While the CJEU did not rule on whether the facts were the ‘same’, or only ‘similar’, between the prosecutions in Austria and Germany, the Court did however provide guidance for the Local Court Bamberg on how to reach that finding. Whereas the previous judgment in Austria might have related to similar acts that is insufficient to satisfy the idem criterion of the principle. ¹⁵ In that regard, the CJEU determined the issue of sameness of acts/offences based on the identity of victims, which runs counter to the bis and idem criterion of the principle. The Local Court Bamberg will have to determine whether the acts/offences are identical and consequently whether the principle is available to the accused.

Analysis

In Kossowski, ¹⁶ the CJEU was presented with the opportunity to rule on the compatibility of declarations restricting the ne bis in idem principle based on Article 55(1)(a) CISA. However, the Court did not consider the issue given that the determination of another referred question obviated the necessity to rule on the validity of a declaration not to be bound by Article 54 CISA. MR provided the CJEU with the opportunity to clarify that fundamental issue concerning this aspect of the principle.

MR concerned exceptions to the principle under Article 55(1)(b) CISA (contrasted with a limitations under Article 52(1) CFREU) wherein the principle was not available to the accused in Germany. While the CJEU refers to exceptions, ¹⁷ the judicial interpretative analysis of the exception is performed through the lens of an unqualified limitation and this analysis was applied in the application of Article 52(1) CFREU. This aspect of the judgment is clearly inconsistent with the purpose and effect of Article 54 CISA interpreted in the light of Article 50 CFREU because the principle was completely circumscribed by the exception made by Germany and consequently not available to the accused. The judgment therefore seems to be inconsistent with previous CJEU judgments wherein the application of the principle was merely limited. ¹⁸ The uncertainty is further demonstrated by the CJEU when assessing the application of Article 52(1) CFREU and the question of whether the ‘essence’ of the principle would have been preserved in cases where the reservation made by Germany could be applied. The CJEU concluded that the ‘essence’ of the principle was preserved. ¹⁹ Significantly, the judgment reached this conclusion based on an interpretative analysis of the principle from a general approach of state security and organised crime, as opposed to the individual rights of accused persons in criminal proceedings. States therefore retain the sovereign authority to prosecute and punish convicted offenders with different objectives from those for which the same accused has previously been acquitted or convicted and punished accordingly in another state. ²⁰ In this regard, the judgment seems to have interpreted the scope of the ‘essence’ of the principle in accordance with Article 52(1) CFREU in the context of legitimate concerns of states to prosecute offences instead of individual rights of the accused. This is compounded by the CJEU’s reasoning that the exemption from the principle ‘is accompanied by rules that will guarantee that the resulting disadvantages, for the persons concerned, are limited to what is strictly necessary.’ ²¹ Consequently, the principle is not applicable to the accused in such circumstances owing to the exception (Article 55(1)(b) CISA), and not merely a limitation (Article 52(1) CFREU). The CJEU should in fact assess whether the essence of a fundamental right is preserved notwithstanding a limitation on that right from the perspective of individual rights of the accused, which requires an individual approach not a general approach to assessments of this element of the principle. That is the interpretative approach taken by the ECtHR when determining whether the essence of a right is preserved is considered from the perspective of individual rights and not of state interference with such rights, and only measures restricting the rights of the accused that are not detrimental to the very ‘essence’ of fundamental rights may be permissible in the context of Article 6(1) ECHR. ²² In this regard, subjecting an accused to multiple criminal proceedings and punishments based on an exception to the principle should be sufficiently counterbalanced by fair trial procedural safeguards followed by judicial authorities in national criminal proceedings. ²³

A significant feature of the CJEU judgment in MR is that the level of protection for the accused is much lower than the equivalent protection afforded by the ECtHR through Article 4(1) (right not to be tried or punished twice) of Protocol No. 7 ECHR. The explanations accompanying Article 50 CFREU stipulate that provision ‘has the same meaning and the same scope as the corresponding right in the ECHR.’ ²⁴ It follows that Article 50 CFREU (interstate application) provides the same level of protection as Article 4(1) (intrastate application) of Protocol No. 7 ECHR. It is conceivable that future CJEU judgments will be called upon to further clarify the nature and scope of the principle in terms of the essence of the principle should not vary between the interstate application under Article 54 CISA and Article 50 CFREU, and higher level of protection afforded by the intrastate application of the principle by Article 4(1) of Protocol No. 7 ECHR.

MR is comparable with WS v Federal Republic of Germany ²⁵ wherein the scope and limitations of the principle within the EU were clarified, and the correlation between the principle and free movement of persons was confirmed. Once the accused’s criminal liability was determined in Germany, other states could not arrest or prosecute the same accused based on same facts including an Interpol red notice issued by the United States. WS copper-fastens the overarching principle of mutual recognition and mutual trust of judgments between states’ legal systems within an area of freedom, security and justice. ²⁶

The CJEU judgment in MR highlights the necessity to prevent conflicts of prosecutorial jurisdiction through mutual recognition and mutual trust and cooperation between states. ²⁷ Enhanced cross-border police investigations and judicial cooperation might bring about instances wherein the same accused could be liable for prosecution and punishment by several states for the same act/offence. The propensity for multiple prosecutions and punishments in this context has exponentially increased in consequence of increased transnational criminality encompassing cross-border offences occurring in multiple jurisdictions. This upward trajectory in the frequency of transnational crimes has been facilitated by open borders and technological advances especially regarding financial crime. ²⁸ The abolition of internal borders in an area of freedom, security and justice facilitates free movement of persons within the EU which heightens the significance of judicial clarification on the purpose and scope of the principle. ²⁹ On that score, the Opinion of AG Ruiz-Jarabo Colomer in Van Esbroeck ³⁰ is noteworthy: the right to freedom of movement is effectively guaranteed only if the accused has knowledge of the fact that following conviction and enforcement of sentence, or acquittal by final judgment in a state that freedom to travel within the Schengen area (and implicitly within the EU) without fear of subsequent prosecution in another state wherein that state considers the offence concerned as a separate and distinct offence.

In MR, the CJEU reiterated that the idem factum criterion requires the material facts be identical therefore, the principle is not applicable where the facts are not identical, but merely similar. ³¹ Moreover, the identity of the material facts concerns a set of concrete circumstances based on the course of prohibited conduct that are ‘in essence’ the same concerning the same accused and are ‘inextricably linked together in time and space.’ ³² Based on this interpretation, the principle is not intended to be applied where the facts under consideration are not identical, but merely similar. In MR, while the CJEU did not rule that the acts/offences were ‘similar’ but not the ‘same’ because victims in Austria differed from the victims in Germany based on the same prohibited conduct, ³³ it did however provide guidance for the Local Court, Bamberg on how to reach that finding. As regards the idem condition, it follows from the wording of Article 50 CFREU that that provision prohibits the same accused from being prosecuted or punished in criminal proceedings more than once for the same ‘offence’, which contrasts with the ‘same acts’ stipulation in Article 54 CISA. The identity of elements of offences is more precise than the identity of acts or broader facts based assessment of the idem criterion. The CJEU determination of this criterion based on the identity of victims does not seem to correlate with the purpose of these provisions and the very essence of the principle.

CJEU jurisprudence has delineated the complexities of the respective provisions and judicial formulations stipulate a harmonised approach to the applicability of the principle by national legal systems. ³⁴ Legal classifications under national law of the facts and the legal interest protected are not relevant for the purposes of establishing the existence of the same offence. Significantly, the scope of the protection conferred by Article 50 CFREU should not vary between states, ³⁵ which may form the basis of future referrals based on the significance of the principle within the area of freedom, security and justice offering a high level of protection to accused persons. Determining the sameness of acts/offences based the elements of offences should not be the only criterion determining the applicability of the principle, which should not be subject to the arbitrary discretion of states to circumscribe the essence of the principle as this would be incompatible with the purpose and scope of Article 54 CISA and Article 50 CFREU. Appropriate and consistent CJEU judicial guidance is therefore essential for ensuring ensure consistency of approach to determining this issue before national courts, especially concerning cross-border offences. ³⁶

The exception in Article 55(1)(b) concerning national security and other equivalent state interests will inevitably be interpreted according to the laws and procedures of each state. The implication of the CJEU judgment in MR is that accused persons may be subject to multiple prosecutions and punishments in multiple states for the same act/offence depending on whether judicial assessments of the idem criterion are based on an idem factum or idem crimen approach. The judgment will have implications for states that have not only declared not to be bound by Article 54 CISA based on the 55(1)(b) exception but also from the other exceptions in paragraph (a) acts to which the foreign judgment relates to took place in the territory of the Member State, and paragraph (c) acts committed by its officials.

Limitations on fundamental rights must be strictly necessary and proportionate to the objectives to be achieved by the derogation, ³⁷ which in the context of the judgment in MR (exception to the principle) seems to have concerned state security and vindicating the rights of victims of the accused’s crime in Germany. Notably, the limitations to rights and freedoms includes the criterion ‘to protect the rights and freedoms of others’, which might have influenced the CJEU judgment that seems to have adjudicated the same act/offence criterion based on the identity of victims. ³⁸ This approach does not seem to preserve the ‘essence’ of the principle, which provides a protection against multiple criminal proceedings and punishments following an acquittal or conviction of the same accused for the same act (idem factum) constituting an offence (idem crimen).

The CJEU judgment seems to have analysed the referred questions from the perspective of ‘limitations’ (with Article 52(1) CFREU), ³⁹ but the notion of exception to the application of the principle under Article 55(1)(b) CISA is referred to in the judgment. ⁴⁰ The problematic issue here is that of interpretation, namely whether the derogation being considered in the referred questions could be deemed a ‘limitation’ on the principle as all of the possible exceptions in Article 55(1) (a), (b) and (c) CISA were not invoked in the case under consideration, or alternatively whether this derogation should be treated as a complete exception to the application of the principle in the context of offences specified in Article 55(1)(b). What is equally striking is that the CJEU seems to have determined the issue as to whether the accused could be prosecuted for essentially the same act/offence (that formed the basis of the conviction in Austria) was based on the identity of victims and state sovereignty to prosecute offences affecting victims in Germany (that formed the basis of conviction in Austria of the same accused for act/offence against victims in that state). ⁴¹

The CJEU seems to have erroneously adopted the same facts assessment which determined that victims residing in Germany and Austria were not the same and therefore there should be no impediment against Germany proceeding with a prosecution and punishment of convicted offenders for what essentially is the same act/offence. ⁴² This approach deprived the accused of the interstate principle under Article 50 CFREU. Although Germany had made a reservation not to be bound by Article 55(1)(b), the judgment has the potential to be interpreted by national courts and future CJEU cases based on a ‘same facts’ assessment. This is problematic with the consequence that accused persons could be prosecuted and punished for having exercised the right of freedom of movement, or surrendered under a EAW, in states that have not made reservations but nonetheless adopt a very broad same facts assessment in determining the applicability of the principle.

While the questions referred in MR were not about the idem criterion of the principle, the judgment ended up being the case with the CJEU ruling making an important collateral finding on the idem criterion that raises concerns, namely where the facts to be considered the same, could the different nationality of victims be relevant to define the other ‘equally essential interests’ of that state. This would be an unduly restrictive interpretation of the idem criterion. An example on how this concern could be materialised is evident in Juan (Ministerio Fiscal) ⁴³ wherein the CJEU inter alia ruled on Article 3(2) of Framework Decision 2002/584 (on the EAW and the surrender procedures between Member States) which provides that a state shall refuse to execute a EAW ‘if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State.’ The requested person, a Spanish national, was serving a prison sentence of 11 years and 10 months in Spain for serious fraud and money laundering. That sentence was imposed in 2018 by the National High Court, Spain. In 2020, the requested person was also sentenced by the District Court, Lisbon, Central Criminal Court, Lisbon, to six years and six months imprisonment for serious fraud. A EAW was issued against the requested person for the purpose of executing that sentence and forwarded to the competent Spanish authorities. The requested person objected to the execution of the EAW issued by Portugal for the purpose of executing the sentence imposed by the District Court, Lisbon, Central Criminal Court, Lisbon for serious fraud. In December 2021, the National High Court, Spain refused to execute that EAW on the ground that the requested person was a Spanish national, while deciding that he would serve in Spain the sentence imposed in Portugal. The requested person appealed against that order, claiming that the EAW should not be executed and the Portuguese judgment should not be enforced. The requested person claimed that the judgment in Portugal is based on the same facts on which the Spanish judgment is based and therefore the principle applies. The referring court (High Court, Spain) requested preliminary ruling on whether the facts involved a single continuing offence, so the requested person is protected by the principle. The CJEU ruled that the principle does not preclude the execution of the EAW on the basis that the principle is only applicable if the facts for which the person concerned is serving a sentence in a state are identical to the facts on which the EAW is based. There must be a set of concrete circumstances stemming from events which are inextricably linked together in time and space. According to the CJEU, the use of an identical methods to engage in fraudulent activities in both states might indicate the ‘same facts.’ ⁴⁴ On the basis of this CJEU interpretative guidance, the Spanish High Court must now decide whether it considers the offences to be identical. However, the judgment is problematic because the unlawful activities were carried out by separate legal entities, the fraudulent activity continued in Portugal although investigations were opened in Spain and activity there ceased, the Spanish judgment relates to victims of crime (investors) residing in Spain whereas the Portuguese judgment relates to victims of crime (investors) residing in Portugal. The CJEU ruled that Article 3(2) of Framework Decision 2002/584 precludes the execution of a EAW issued by a state where the requested person has previously been finally acquitted or convicted in another state and is serving a prison sentence in that state for the offence. This judicial guidance is predicated on the same requested person being prosecuted in the issuing state regarding the same acts. Significantly, the CJEU determined that an assessment of the classification of offences in the executing state is not necessary in order to establish the ‘same acts.’ ⁴⁵ This broader idem factum approach militates in favour of multiple criminal proceedings and punishments, as opposed to a narrower idem crimen assessment of the elements of offences, the latter providing a higher level of protection for accused persons.

Conclusion

In MR, the CJEU (Fifth Chamber) upheld an exception to the interstate application of the principle in the context of offences against national security or other equally essential interests as provided for by Article 55(1)(b) CISA. Moreover, this exception was deemed compatible with Article 50 CFREU and Article 52(1) CFREU. Significantly, the CJEU ruled that the essence of the principle was preserved even though the effect of that exception completely deprived the accused of the principle against multiple criminal proceedings, convictions and punishments based on the same act/offence. The exception (not merely a limitation) authorised German national courts to prosecute MR under German criminal law despite the fact the accused had formerly been convicted and sentenced for the same acts/offence in Austria. According to this reasoning, the preservation of the essence of the principle can benefit the interests of the state concerned rather than for that of the individual accused, which is contrary to the approach of the ECHR wherein individuals, not states, are the beneficiaries of fundamental rights. The interpretative analysis of the purpose, scope and exceptions to the interstate application of the principle under Articles 54 and 55(1)(b) CISA commensurate with Articles 50 and 52(1) CFREU seems to be incompatible with the level of protection afforded to accused persons under the intrastate application of the principle under Article 4(1) of Protocol No. 7 ECHR. This dilemma is compounded by the fact that rights protected by the CFREU are intended to afford the same level of protection as those rights protected by the ECHR, and the very essence of the procedural safeguard should not be dependent on whether accused persons are invoking the interstate or intrastate provisions.

The CJEU judgment appears to have determined the idem criterion based on an unduly restrictive concept requiring an identify of victims which differed between Germany and Austria. On that judicial interpretative analysis the prohibited conduct by the accused that caused harm to victims residing in the two states was deemed sufficient to determine the idem criterion of acts/offences as merely being similar as opposed to being the same. Significantly, the criteria for determining the idem criterion was not clearly established by the CJEU, only on the basis of the victims’ nationality. This determination of the idem criterion may have profound implications for persons accused by multiple states and more so if a state has declared not to be bound by Article 54 CISA within the EU’s area of freedom, security and justice.