Judgement of the Court of Justice of the European Union (First Chamber), C-58/22, ECLI:EU:C:2024:70
Member State
Romania
Topic
Independence and accountability of the judiciary
Sector
Use of the Preliminary Reference Procedure; Judicial Interaction Techniques; Predictive Justice.
Deciding Court Original Language
Curtea de Justiție a Uniunii Europene
Deciding Court English translation
Court of Justice of the European Union
Date Decision
25 January 2024
ECLI (if available)
ECLI:EU:C:2024:70
National Follow Up Of (when relevant)
The Judgment of the Court in case C- 58/22 represents the response to the request made by a national ordinary court, Court of Appeal, Craiova, as follow-up of a judgment in a criminal matter, issued by the High Court of Cassation and Justice, Romania, within an cassation appeal. By this Decision, the High Court of Cassation and Justice found that the that Court of Appeal Craiova wrongfully applied the principle ne bis in idem. In the context of reconsideration of its decision, the referring court raised a question of the interpretation to be given to the principle ne bis in idem, within the meaning of Article 50 of the Charter, in circumstances such as those at issue in the main proceedings.
EU legal sources and CJEU jurisprudence
Article 50 of the Charter of Fundamental Rights of the European Union;
Article 2 and 4 of Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector;
Article 4 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms;
e.g.: Asociaţia ‘Forumul Judecătorilor din România’ and Others (C 83/19, C 127/19, C 195/19, C 291/19, C 355/19 and C 397/19, EU:C:2021:393);
TSN and AKT (C 609/17 and C 610/17, EU:C:2019:981;
Volkswagen Group Italia and Volkswagen Aktiengesellschaft, C 27/22, EU:C:2023:663
Juan, C 164/22, EU:C:2023:684; bpost, C 117/20, EU:C:2022:202; Kossowski, C 486/14, EU:C:2016:483; B and Others (Revocation of an amnesty), C 203/20, EU:C:2021:1016; Dual Prod, C 412/21, EU:C:2023:23; AY (Arrest warrant – Witness), C 268/17, EU:C:2018:602; INTER Consulting, C 726/21, EU:C:2023:764;
ECtHR Jurisprudence
Mihalache v. Romania, CE:ECHR:2019:0708JUD005401210
Subject Matter
Reference for a preliminary ruling – Article 50 Charter of Fundamental Rights of the European Union
Legal issue(s)
In the context of the appeal on a point of law mentioned at point 3.7, the case deals with the Romanian ordinary court's request to the effect that a person can be considered finally acquitted, within the meaning of Article 50 of the Charter of Fundamental Rights of the European Union, as a result of the adoption by a public prosecutor of a decision to discontinue proceedings when no penalty or other punitive measure is imposed upon that person.
Request for expedited/PPU procedures
No
National Law Sources
Article 6 of the Romanian Code of Criminal Procedure, entitled ‘Ne bis in idem’;
Article 335 the Romanian Code of Criminal Procedure, entitled ‘Resumption in the event of criminal proceedings being re-opened’;
Article 6 of Law No 78/2000 on the prevention, detection and punishment of acts of corruption;
Facts of the case
GL, HS, JK, MT and PB then lodged two criminal complaints against NR, identical in content. The first one was registered with the Public Prosecutor’s Office at the Regional Court, Olt, under the reference 47/P/2016. The second one lodged before the National Anti-Corruption Directorate – Craiova regional service was transferred to the Public Prosecutor’s Office at the Court of First Instance, Slatina and was registered under the reference 673/P/2016.
The public prosecutor in charge of case 673/P/2016 adopted an order that no further action be taken in the case. This order became final.
In case 47/P/2016 Regional Court, Olt sentenced NR.
Court of Appeal, Craiova upheld the appeal brought by NR and held that the principle ne bis in idem had been infringed, since the decision to bring criminal proceedings in case 47/P/2016 related to the same person and the same facts as those at issue in case 673/P/2016.
The High Court of Cassation and Justice set aside the judgment under appeal in cassation and referred the case back to the Court of Appeal, Craiova for reconsideration on the ground, in essence, that it was wrong when conclude that the principle ne bis in idem was applicable. In the context of that reconsideration, the Court of Appeal, Craiova raises a question of the interpretation to be given to the principle ne bis in idem.
Reasoning (role of the Charter or other EU, ECHR related legal basis)
According to the First Chamber, the principle ne bis in idem enshrined in Article 50 of the Charter must be interpreted as meaning that a person may not be regarded as having been finally acquitted, within the meaning of Article 50, as a result of an order that no further action be taken adopted by a public prosecutor in the absence of an examination of the legal situation of that person as criminally liable for the acts constituting the offence prosecuted.
As regards the ‘bis’ condition, the CJEU held that for a person to be regarded as someone who has been ‘finally acquitted or convicted’ in relation to the acts which he or she is alleged to have committed, within the meaning of Article 50 of the Charter, it is necessary, in the first place, that further prosecution has been definitively barred, in accordance with the national law. Also, within the meaning of Article 50 of the Charter, in relation to the acts which he or she is alleged to have committed, it is necessary to be satisfied that the decision was taken after a determination as to the merits of the case in question.
Article 50 of the Charter is also applicable where an authority responsible for administering criminal justice in the national legal system concerned, such as the public prosecutor, issues decisions definitively discontinuing criminal proceedings, although such decisions are adopted without the involvement of a court and do not take form of a judicial decision
As regards the ‘idem’ condition, the CJEU held that it follows from the very wording of Article 50 of the Charter that this provision prohibits the same person from being tried or punished in criminal proceedings more than once for the same offence.
Relation of the case to the EU Charter
The CJEU considered that Article 50 of the Charter is applicable to the case in the main proceedings. Briefly, the CJEU provided an interpretation of Article 50 of the Charter, some guidance as to how Article 50 of the Charter may be applied by the referring court, in circumstances such as those at issue in the main proceedings and some remarks regarding the nature and scope of the principle ne bis in idem, with a view to place the interpretation of Article 50 of the Charter.
The Court pointed out that the principle ne bis in idem enshrined in Article 50 of the Charter must be interpreted as meaning that a person may not be regarded as having been finally acquitted, within the meaning of Article 50, as a result of an order that no further action be taken adopted by a public prosecutor in the absence of an examination of the legal situation of that person as criminally liable for the acts constituting the offence prosecuted.
Relation between the EU Charter and ECHR
The CJUE held the applicability if article 4 of Protocol no 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms in this case. The court pointed out that there is a significant convergence between the judgments that were given by the Court of Justice and by the ECtHR in respect of the application of the principle ne bis in idem.
Use of Judicial Interaction technique(s)
Use of the preliminary reference mechanism by the national ordinary courts in order to disapply the caselaw of the national superior court (High Court of Cassation and Justice) that is in breach of EU law; Preserving the efficiency of the judicial cooperation mechanism through art. 267 TFEU.
Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)
N/A
Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)
The national referring court pointed out the conflicting perspectives between its interpretation and the ÎCCJ’s (High Court of Cassation and Justice) interpretation of the principle ne bis in idem enshrined in Article 50 of the Charter. The same court emphasized that, while being required to comply with the ÎCCJ’s decision and having a different opinion on the interpretation of that principle, it considers it necessary to refer a question to the Court of Justice for a preliminary ruling.
Strategic use of judicial interaction technique (purpose aimed by the national court)
The purpose aimed by the national court is represented by granting the primacy of EU law at the national level.
The referring court used the preliminary ruling mechanism to not comply with the ÎCCJ’s decision by which the latter although held that the "ne bis in idem" principle may apply in the case of the decisions taken by the public prosecution service which terminate the public prosecution, such as discontinuance of the prosecution or a sentence negotiated between the parties, not all decisions to take no further action made by the public prosecution service fall into the category of a final judgment since, in most cases, those solutions are not final and an instruction to reopen the investigation may be given.
Impact on Legislation / Policy
N/A
Notes on the national implementation of the preliminary ruling by the referring court
The referring court uses the First Chamber Judgement in C–58/22 as full support to not comply with the ÎCCJ’s decision and to order the termination of the criminal proceedings against NR.
Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?
Further the case law of the ECHR mentioned at point 4.4, the national referring court did quote the following ECHR judgments: Franz Fischer v. Austria (37950/97), of 29 May 2001 and Sergey Zolotukhin v. Russia (no. 14939/03), 10 February 2009.
Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?
The standards and recommendations of GRECO and the Venice Commission are not mentioned by the ordinary referring Court in its judgement following the First Chamber Judgement in the C 58/22 case.
Did the national court take into account national case law on fundamental rights?
The national case law on fundamental rights was not considered an important element in this case.
If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information
Pursuant to national procedural law, the judgment of the national court subsequent to the First Chamber Judgment is not final. The appeal in cassation (an extraordinary appeal) declared by the Public Prosecutor’s Office at the Court of Appeal, Craiova against the national judgement is pending before the High Court of Cassation and Justice.
Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?
Pursuant to national procedural law, the judgment of the national court subsequent to the First Chamber Judgment is not final. The appeal in cassation (an extraordinary appeal) declared by the Public Prosecutor’s Office at the Court of Appeal, Craiova against the national judgement is pending before the High Court of Cassation and Justice.
Impact on national case law from the same Member State or other Member States
Connected national caselaw / templates
N/A
Author
Carmen Zăbrăuțanu, UNBR