Can You Be Tried Again in Italy
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Article 54 of the Convention implementing the Schengen Agreement of fourteen June 1985 between the Governments of the States of the Benelux Economic Wedlock, the Federal Republic of Frg and the French Democracy on the gradual abolitionism of checks at their common borders, signed in Schengen (Luxembourg) on 19 June 1990, must be interpreted every bit meaning that an lodge making a finding that there is no ground to refer a case to a trial courtroom which precludes, in the Contracting Country in which that club was made, the bringing of new criminal proceedings in respect of the aforementioned acts against the person to whom that finding applies, unless new facts and/or show against that person come to light, must be considered to be a final judgment, for the purposes of that article, precluding new proceedings confronting the aforementioned person in respect of the same acts in another Contracting State.
JUDGMENT OF THE COURT
(Fourth Chamber)
5 June 2014
(Convention implementing the Schengen Agreement " Article 54 " "Ne bis in idem" principle " Scope " Guild made by a court of a Contracting State finding that there is no basis to refer a example to a trial courtroom because of bereft evidence " Possibility of reopening the criminal investigation in the case where new facts and/or show come to light " Concept of person whose trial has been "finally disposed of" " Criminal prosecution in another Contracting State of the same person in respect of the same acts " Preclusion of further prosecution and application of the ne bis in idem principle)
In Case C"398/12,
REQUEST for a preliminary ruling under Article 35 EU from the Tribunale di Fermo (Italy), made past decision of 11 July 2012, received at the Court on 29 August 2012, in the criminal proceedings against
M,
THE COURT (Fourth Bedchamber),
composed of L. Bay Larsen (Rapporteur), President of the Chamber, K. Lenaerts, Vice-President of the Courtroom, acting as Judge of the Fourth Chamber, Thousand. Safjan, J. Malenovský and A. Prechal, Judges,
Advocate General: E. Sharpston,
Registrar: A. Impellizzeri, Administrator,
having regard to the written procedure and further to the hearing on 12 September 2013,
after considering the observations submitted on behalf of:
" Q and R, by C. Taormina and Fifty.5. Mascioli, avvocati,
" the Italian Government, past G. Palmieri, acting equally Amanuensis, and past Yard. Palatiello, avvocato dello Stato,
" the Belgian Government, by T. Materne and C. Pochet, acting as Agents,
" the High german Government, by T. Henze and J. Kemper, acting as Agents,
" the Netherlands Regime, past C. Schillemans, Thousand. de Ree, C. Wissels and B. Koopman, acting as Agents,
" the Austrian Government, past A. Posch, acting as Agent,
" the Polish Authorities, by B. Majczyna, Chiliad. Arciszewski, M. Szpunar and M. Szwarc, acting as Agents,
" the Swiss Authorities, past D. Klingele, acting as Agent,
" the European Commission, by F. Moro and R. Troosters, acting as Agents,
after hearing the Opinion of the Advocate Full general at the sitting on 6 February 2014,
gives the following
Judgment
1 This request for a preliminary ruling concerns the estimation of Commodity 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of united states of america of the Benelux Economical Union, the Federal Republic of Frg and the French Democracy on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19), signed in Schengen on nineteen June 1990 ("the CISA").
two The request has been made in criminal proceedings brought in Italy against M, on the basis of the aforementioned acts equally those which had been the subject of a parallel investigation in Kingdom of belgium, on the ground that he had committed, betwixt May 2001 and Feb 2004, on the territory of that latter Fellow member State, acts of sexual violence against a child.
Legal context
European Convention for the Protection of Human Rights and Key Freedoms
three The European Convention for the Protection of Human being Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 ("the ECHR"), has annexed to information technology Protocol No vii, signed at Strasbourg on 22 November 1984 and ratified past 25 Member States of the European Union ("Protocol No 7 to the ECHR"), Article 4 of which, entitled "Right not to exist tried or punished twice", is worded equally follows:
"1. No one shall be liable to exist tried or punished again in criminal proceedings under the jurisdiction of the same Country for an offence for which he has already been finally acquitted or convicted in accordance with the police force and penal procedure of that Land.
- The provisions of the preceding paragraph shall not foreclose the reopening of the case in accordance with the law and penal procedure of the Land concerned, if in that location is bear witness of new or newly discovered facts, or if at that place has been a fundamental defect in the previous proceedings, which could impact the outcome of the example.
- No derogation from this Article shall be made under Article 15 of the [ECHR]."
EU law
Charter of Fundamental Rights of the European Union
4 Article 50 of the Charter of Central Rights of the European Union ("the Lease"), which is entitled "Right not to be tried or punished twice in criminal proceedings for the same offense", is worded as follows:
"No one shall be liable to exist tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Marriage in accordance with the law".
Protocol (No 19) on the Schengen acquis
five Protocol (No 19) on the Schengen acquis integrated into the framework of the European Wedlock, annexed to the Treaty of Lisbon (OJ 2010 C 83, p. 290), states in Articles 1 and 2 that the Kingdom of Kingdom of belgium and the Italian Democracy are amidst the Member States to which the Schengen acquis applies.
Protocol (No 36) on transitional provisions
six In accordance with Article 10(i) and (3) of Protocol (No 36) on transitional provisions, annexed to the FEU Treaty, the powers of the Courtroom under Title VI of the Eu Treaty, in the version in force prior to the entry into force of the Treaty of Lisbon, are to remain the aforementioned, for five years afterwards the date of entry into force of the Treaty of Lisbon with respect to acts of the European Union which were adopted before the entry into forcefulness of that Treaty, including where they were accepted under Article 35(2) European union.
Declaration on the basis of Article 35(2) EU
7 It is apparent from the information apropos the date of entry into force of the Treaty of Amsterdam, published in the Official Periodical of the European Communities of ane May 1999 (OJ 1999 L 114, p. 56), that the Italian republic made a proclamation on the basis of Commodity 35(two) Eu by which it accepted the jurisdiction of the Courtroom to requite preliminary rulings in accordance with the arrangements laid downward in Article 35(three)(b) European union.
The CISA
8 The Schengen acquis includes the CISA. Title III of the CISA, entitled "Police force and Security", contains a Chapter 3, itself entitled "Application of the ne bis in idem principle". Under Article 54 of the CISA, which is in Affiliate 3:
"A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, information technology has been enforced, is actually in the procedure of being enforced or tin no longer be enforced under the laws of the sentencing Contracting Party".
Belgian law
9 Commodity 128 of the Belgian Criminal Investigation Code (the "CIC") provides that, when a request is made for a person under investigation to be committed for trial, "[i]f the pre-trial chamber is of the opinion that the facts disclose no crime, offence or misdemeanour, or that at that place are no facts and/or prove against the defendant, it shall declare that the proceedings should non be connected".
10 Article 246 of the CIC states:
"Where the indictment division has decided that in that location is no cause to send the case to trial, the accused may not be tried thereafter on the basis of the same facts, unless new facts and/or evidence become available."
11 Commodity 247 of the CIC provides:
"Witness statements, documents and minutes which it was not possible to submit to exam by the indictment division, and which are capable either of strengthening the evidence that the indictment division institute to be too weak or of presenting the facts in new ways which are useful in establishing the truth, are considered to be new facts and/or bear witness."
12 It is apparent from the documents earlier the Court that, in Belgium, the Cour de cassation (Court of cassation) has held that Articles 246 and 247 of the CIC govern not only decisions of the indictment division that a case should not proceed to trial, simply also all instances in which investigatory courts, including the pre-trial chamber, have closed a criminal investigation past a finding having the same issue.
xiii Article 248 of the CIC provides that, if new facts and/or evidence become available, the relevant senior police officeholder or examining magistrate is required to send copies of the documents and factual and/or evidentiary textile to the senior prosecutor before the court of appeal. On request by the senior prosecutor, the president of the indictment partitioning designates the judge earlier whom a new investigation is to go on at the request of the prosecuting authorization.
Italian law
fourteen Article 604 of the Italian Criminal Lawmaking provides that acts of sexual violence committed by Italian nationals may be prosecuted in Italy even if they were committed abroad.
The dispute in the main proceedings and the question referred for a preliminary ruling
15 M, an Italian citizen, resides in Kingdom of belgium, where " following a series of reports made by Q, his daughter-in-law " he was the subject, in 2004, of criminal proceedings in respect of multiple acts of sexual violence or unlawful acts of a sexual nature, including indecent assault on a immature person nether the age of 16.
xvi It was declared that those acts were carried out in Belgium between May 2001 and February 2004 confronting Northward, his granddaughter, built-in on 29 April 1999, with the complicity of his son O, who is Due north"s father.
17 At the conclusion of an investigation during which diverse items of evidence were collected and examined, the pre-trial sleeping accommodation of the tribunal de première instance de Mons (Court of First Instance, Mons) (Belgium) made, by social club of fifteen December 2008, a finding that at that place was no footing to refer the case to a trial court considering of insufficient evidence ("the lodge making a finding of "non-lieu"").
eighteen The indictment division of the cour d"appel de Mons (Court of Appeal, Mons) (Belgium) upheld that order making a finding of "non-lieu" by judgment of 21 Apr 2009. The appeal against that judgment was dismissed past the Cour de cassation (Kingdom of belgium) by judgment of 2 December 2009.
19 In parallel to the investigation carried out in Belgium, and following a complaint made past Q, on 23 November 2006, to the Italian police, criminal proceedings against Grand were opened before the Tribunale di Fermo (District Courtroom, Fermo) on the basis of the same facts equally those referred to in paragraphs 15 and xvi above.
xx On 19 December 2008, at the decision of an investigation which substantially followed the same grade every bit the investigation carried out in Belgium, the examining magistrate of the Tribunale di Fermo committed Thou to exist tried before the collegiate formation of that court.
21 At the hearing held on 9 December 2009 before the Tribunale di Fermo, 1000 invoked the Cour de cassation"due south judgment of 2 December 2009 and the principle of ne bis in idem.
22 While acknowledging that the facts which had been the subject of investigations in both Belgium and Italy were identical, the public prosecutor and Q"s lawyers disputed the existence of a judgment on the merits which had the forcefulness of res judicata and, in that respect, claimed that the order of fifteen December 2008 making a finding of "non-lieu" was not an obstruction to a subsequent reopening of the proceedings if new facts and/or evidence came to low-cal.
23 The referring courtroom states that that society making a finding of "non-lieu" precludes the accused from beingness committed for trial unless new facts and/or evidence, as divers in Article 247 of the CIC, come to light.
24 The referring court also notes that, under Belgian law, the criminal investigation may exist reopened on the ground of new facts and/or testify just at the request of the public prosecutor.
25 In those circumstances the Tribunale di Fermo decided to stay proceedings and to refer the following question to the Courtroom of Justice for a preliminary ruling:
"Does a last judgment of "non-lieu" that terminates criminal proceedings after an all-encompassing investigation but which permits the proceedings to be reopened in the lite of new evidence, given by [a court of] a Fellow member Country of the European Union and a party to the Convention Implementing the Schengen Understanding (CISA), prevent the initiation or comport of proceedings in respect of the same facts and the same person in another Contracting State""
The question referred for a preliminary ruling
26 By its question the referring court asks, in essence, whether Commodity 54 of the CISA must exist interpreted as meaning that an order making a finding that there is no footing to refer the case to a trial court which precludes, in the Contracting Country in which that lodge was fabricated, new criminal proceedings in respect of the aforementioned acts against the person to whom that finding applies, unless new facts and/or evidence against that person become bachelor, must be considered to exist a final judgment, for the purposes of that article, thereby precluding new proceedings confronting the aforementioned person in respect of the aforementioned acts in another Contracting Land.
27 As is articulate from the bodily wording of Article 54 of the CISA, no one may be prosecuted in a Contracting State for the same acts as those in respect of which his trial has been "finally tending of" in some other Contracting State.
28 In order to decide whether a judicial decision constitutes a decision finally disposing of the case against a person, within the meaning of that article, it is necessary to be satisfied that that decision was given afterward a determination had been made every bit to the merits of the case (come across, to that event, Example C"469/03 Miraglia European union:C:2005:156, paragraph thirty).
29 In this respect, the Courtroom has held that a decision of the judicial authorities of a Contracting State by which an accused person is definitively acquitted considering of the inadequacy of the prove must be considered to be based on such a determination (see, to that event, Case C"150/05 van Straaten European union:C:2006:614, paragraph threescore).
30 It is therefore necessary to land that an social club making a finding of "non-lieu" at the finish of an investigation during which various items of evidence were collected and examined must exist considered to take been the subject of a decision as to the claim, within the meaning of Miraglia European union:C:2005:156, in and so far as information technology is a definitive determination on the inadequacy of that testify and excludes any possibility that the instance might be reopened on the basis of the aforementioned body of bear witness.
31 In that respect, it is credible from the settled example-law of the Courtroom that, for a person to be regarded equally someone whose trial has been "finally disposed of" in relation to the acts which he is alleged to accept committed, for the purposes of Article 54 of the CISA, further prosecution must have been definitively barred, with the outcome that the decision at consequence leads, in the Contracting Country in which it was adopted, to the protection granted by the ne bis in idem principle (run across, to that effect, Case C"491/07 Turanský European union:C:2008:768, paragraphs 32 and 35 and the case-law cited).
32 A decision which does not, under the constabulary of the Contracting Country which instituted criminal proceedings against a person, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the aforementioned acts against that person in some other Contracting State (Turanský EU:C:2008:768, paragraph 36).
33 As is apparent from the determination making the reference, following the judgment delivered by the Cour de cassation on two December 2009, the order making a finding of "non-lieu" acquired the force of res judicata. Therefore, further prosecution must be considered to exist definitively barred, thus precluding, in the Kingdom of Belgium, any new criminal proceedings confronting M for the same acts and on the basis of the aforementioned body of testify as that examined in the context of the proceedings which led to that order. Articles 246 to 248 of the CIC provide, in essence, that the proceedings can be reopened only on the footing of new facts and/or prove, namely, in particular, evidence which has not yet been submitted for examination by the indictment division and which is capable of altering its finding of "non-lieu".
34 In add-on, it should exist noted that, equally the Court plant in paragraph xl of its judgment in Case C"297/07 Bourquain EU:C:2008:708, in relation to a judgment delivered in absentia, the sole fact that that criminal procedure would, nether national law, have necessitated the reopening of the proceedings does not, in itself, mean that the judgment cannot be regarded as "concluding" for the purposes of Article 54 of the CISA.
35 Furthermore, it should be noted that, since the right not to be tried or punished twice in criminal proceedings for the same criminal offence is besides prepare out in Commodity 50 of the Charter, Article 54 of the CISA must be interpreted in the light of that provision.
36 In this respect, it must exist noted, beginning, that the cess of the "terminal" nature of the criminal ruling at upshot must exist carried out on the basis of the constabulary of the Fellow member State in which that ruling was made.
37 Second, information technology must exist noted that, according to the explanations relating to Article 50 of the Lease, which take to be taken into consideration for the purpose of interpreting information technology (judgment in Case C"617/10 Åkerberg Fransson European union:C:2013:105, paragraph 20 and the case-law cited), "[a]s regards the situations referred to by Article 4 of Protocol No 7, namely the application of the [ne bis in idem] principle within the same Member State, the guaranteed correct has the same pregnant and the same scope as the corresponding correct in the ECHR". Given that Commodity 54 of the CISA makes the terminal nature of a judicial decision dependent, for the purposes of application of the ne bis in idem principle to possible prosecutions by another Contracting Country, on whether or not that decision is final in the Contracting State in which it was fabricated, that point in the explanations is relevant in the present case.
38 It follows from Article 4(2) of Protocol No 7 to the ECHR that the ne bis in idem principle set out in paragraph ane of that article does not preclude the reopening of the example "if there is bear witness of new or newly discovered facts" which could touch on the outcome of the case.
39 In this respect, it was held in the judgment of the European Court of Human Rights ("the ECtHR") in Sergey Zolutukhin v. Russia, no. 14939/03, § 83, ECHR 2009, that Article 4 of Protocol No 7 to the ECHR "becomes relevant on commencement of a new prosecution, where a prior acquittal or confidence has already caused the force of res judicata." On the other hand, extraordinary remedies are non taken into account for the purposes of determining whether the proceedings have reached a final decision. Although these remedies stand for a continuation of the first set of proceedings, the "final" nature of the determination does not depend on their being used (Sergey Zolutukhin five. Russia, no. 14939/03, § 108, ECHR 2009).
40 In the present case, the possibility of reopening the criminal investigation if new facts and/or evidence become available, as provided for in Articles 246 to 248 of the CIC, cannot affect the final nature of the society making a finding of "non-lieu" at upshot in the main proceedings. While that possibility is not an "extraordinary remedy", within the significant of the example-law of the European Court of Human Rights just cited, information technology does involve the exceptional bringing of carve up proceedings based on different evidence, rather than the mere continuation of proceedings which take already been airtight. Furthermore, in view of the need to verify that the bear witness relied on to justify the reopening of the proceedings is indeed new, any new proceedings, based on such a possibility of reopening, against the same person for the same acts can be brought only in the Contracting Land in which that order was made.
41 In the light of the foregoing considerations, the answer to the question is that Article 54 of the CISA must be interpreted as significant that an order making a finding that there is no ground to refer a case to a trial court which precludes, in the Contracting Land in which that finding was made, the bringing of new criminal proceedings in respect of the same acts against the person to whom that finding applies, unless new facts and/or evidence against that person come to light, must be considered to be a final judgment, for the purposes of that article, precluding new proceedings against the same person in respect of the same acts in some other Contracting State.
Costs
42 Since these proceedings are, for the parties to the main proceedings, a pace in the activity pending before the referring court, the determination on costs is a matter for that court. Costs incurred in submitting observations to the Courtroom, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fourth Bedroom) hereby rules:
Article 54 of the Convention implementing the Schengen Understanding of xiv June 1985 between the Governments of united states of the Benelux Economic Wedlock, the Federal Republic of Federal republic of germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen (Grand duchy of luxembourg) on 19 June 1990, must be interpreted as pregnant that an order making a finding that there is no basis to refer a case to a trial court which precludes, in the Contracting Country in which that order was made, the bringing of new criminal proceedings in respect of the same acts confronting the person to whom that finding applies, unless new facts and/or evidence against that person come to light, must be considered to exist a final judgment, for the purposes of that article, precluding new proceedings against the aforementioned person in respect of the same acts in some other Contracting Land.
[Signatures]
Source: https://canestrinilex.com/en/readings/double-jeopardy-under-comunitarian-and-italian-law/
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