10 Colum. J. Eur. L. 549 (2004)

Angelina Tchorbadjiyska, PhD candidate at the Institute for European Law at K.U. Leuven, supported by the Research Council of KUL.

On February 11, 2003, the European Court of Justice (“ECJ”) gave its first ruling on the interpretation of the Convention implementing the Schengen Agreement (“CISA”). It was also the first time the ECJ used its jurisdiction under Article 35 of the Treaty on European Union to answer preliminary questions referred to it by national jurisdictions on issues related to justice and home affairs and in particular to criminal matters.

The judgment was rendered after the national courts of Belgium and Germany requested a preliminary ruling interpreting Article 54 of the Convention. The questions arose in two separate criminal proceedings, one in Germany against Mr. Gözütok for offenses committed in the Netherlands and one in Belgium against Mr. Brügge, for offenses committed in Belgium. In both cases, the proceedings already brought against the two offenders had been definitively discontinued by prosecutors in other Member States.

Interpreting the provision in question, which deals with the application of the ne bis in idem principle, the European Court of Justice held that “a person must be regarded as someone whose case has been ‘finally disposed of’ in relation to the acts which he is alleged to have committed, even if no court has been involved in the procedure and the decision taken on the conclusion of the procedure does not take the form of a judicial decision.” The ECJ also stated that a necessary implication of the principle is that the Member States have mutual trust in their criminal justice systems and that each recognizes the criminal law of other Member States even when the outcome would be different if its own national law were applied.