INTER CONSULTING (Judicial cooperation in criminal matters - Schengen Agreement - Opinion) [2023] EUECJ C-726/21

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(Request for a preliminary ruling from the Županijski sud u Puli-Pola (County Court, Pula, Croatia))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Convention implementing the Schengen Agreement – Principle ne bis in idem – Parts of the procedural acts to be referred to by the national court examining the effects of the principle ne bis in idem – Operative part – Statement of reasons – Acts in respect of which criminal proceedings have been discontinued)

1. The facts of the present case are rather complex. In the main proceedings, which are pending in Croatia, several persons have been accused of causing financial damage to a Croatian company, in the context of the implementation of a tourist accommodation project located in Croatia. In the course of those proceedings, it emerged that two of those persons have been acquitted, in Austria, of criminal offences relating to the misappropriation of funds of an Austrian bank which was financing that project. Moreover, the initial prosecution of those persons, in Austria, has been discontinued in part due to a lack of evidence as regards other acts relating to the same project. However, after an examination of the information in the case file, the exact scope of the discontinued part of the prosecution remains somewhat unclear.

2. The Županijski sud u Puli-Pola (County Court, Pula, Croatia), the referring court, observes that the proceedings pending before it may be precluded by the principle ne bis in idem in the light of the proceedings that took place in Austria. However, the precise conclusion to be drawn on that point depends, in essence, on the extent to which information about those previous criminal proceedings set out in the procedural acts adopted in that context is taken into account. Indeed, it appears that, pursuant to Croatian judicial practice, in order to assess whether the protection afforded by the principle ne bis in idem is triggered, the Croatian courts may consider only the facts referred to in certain parts of procedural acts, such as in the enacting terms of an act of indictment or the operative part of a final judgment.

3. Within that context, the referring court enquires more specifically as to whether, for the purpose of applying the principle ne bis in idem, enshrined in Article 54 of the Convention implementing the Schengen Agreement (‘the CISA’), (2) regard must be had only to the key facts cited in the enacting terms of the indictment, issued by a public prosecutor’s office of another Member State, and in the operative part of a final judgment handed down in another Member State, or whether regard must also be had to the facts mentioned in the grounds of that judgment in respect of which the prosecution was discontinued.

4. Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’) states that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law’.

5. Article 54 of the CISA provides that ‘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, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

‘1. Where a Contracting Party charges a person with an offence and the competent authorities of that Contracting Party have reason to believe that the charge relates to the same acts as those in respect of which the person’s trial has been finally disposed of in another Contracting Party, those authorities shall, if they deem it necessary, request the relevant information from the competent authorities of the Contracting Party in whose territory judgment has already been delivered.

2. The information requested shall be provided as soon as possible and shall be taken into consideration as regards further action to be taken in the proceedings under way.

7. Under Article 31(2) of the Ustav Republike Hrvatske (Constitution of the Republic of Croatia), (3) no one is to be liable to be tried or punished a second time in criminal proceedings for an offence in respect of which he or she has already been finally acquitted or convicted in accordance with the law.

8. Under Article 12(1) of the Zakon o kaznenom postupku (Law establishing the Code of Criminal Procedure), (4) no one is to be liable to be punished a second time in criminal proceedings for an offence for which he or she has already been tried and for which a final court judgment has been given.

9. At the material time, GR was a member of the management board of Skiper Hoteli d.o.o. (‘Skiper Hoteli’) and of Interco Umag d.o.o., which later became INTER CONSULTING (‘Interco’, in liquidation). GR was also a member of the management board of Rezidencija Skiper d.o.o. (‘Rezidencija Skiper’) and owned shares in Alterius d.o.o. (‘Alterius’). I understand that all those companies are (or were) registered in Croatia. HS, for his part, was a director of Interco, while IT carried out valuations of immovable property.

10. On 28 September 2015, the Županijsko državno odvjetništvo u Puli (Public Prosecutor’s Office, Pula, Croatia; ‘the Pula PPO’) issued an indictment against GR, HS, IT and Interco. It accused GR and Interco of committing the offence of breach of trust in commercial transactions within the meaning of Article 246(1) and (2) of the Kazneni zakon (Croatian Criminal Code). It further accused HS of having instigated that offence and IT of having aided in its commission.

11. For their part, GR and HS were accused of having acted, in the context of a project for the construction of new tourist accommodation in Savudrija (a Croatian municipality), to ensure that Interco benefited from an unlawful financial advantage at the expense of Skiper Hoteli when they organised an acquisition by Skiper Hoteli, via Interco, of immovable property located in Savudrija, at prices significantly above its market value.

12. The indictment also states that GR, HS and IT caused further financial damage to Skiper Hoteli by acting in such a way that the latter acquired, at a price significantly above their actual value, shares in another Croatian company (Alterius).

14. However, during the initial proceedings, HS had claimed that he was already subject to criminal proceedings in Austria for the same acts. The Pula PPO thus contacted the Staatsanwaltschaft Klagenfurt (Public Prosecutor’s Office, Klagenfurt, Austria; ‘the Klagenfurt PPO’) in 2014 in order to verify whether similar proceedings had, in fact, been initiated there. The Državno odvjetništvo Republike Hrvatske (Public Prosecutor’s Office of the Republic of Croatia) contacted the Austrian Ministry of Justice with a similar request in 2016. According to the referring court, the answers from the Austrian authorities reveal that criminal proceedings had been initiated in Austria against BB and CC, two former members of the management board of Hypo Alpe Adria Bank International AG (‘Hypo Bank’), established in Austria, in relation to the offence of breach of trust within the meaning of Paragraph 153(1) and (2) of the Strafgesetzbuch (Austrian Criminal Code; ‘the StGB’), and against HS and GR as accessories to that offence.

15. More specifically, according to the indictment which the Klagenfurt PPO brought before the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria) on 9 January 2015, BB and CC were accused of approving, between September 2002 and July 2005, the grant of several loans to Rezidencija Skiper and Skiper Hoteli – despite the lack of sufficient project documentation and a loan repayment capacity forecast – thereby causing financial damage to Hypo Bank in the amount of at least EUR 105 million. HS and GR were accused, respectively, of having incited, by requesting the grant of those loans, BB and CC to commit those offences, or of having aided in their commission.

16. On 3 November 2016, the Landesgericht Klagenfurt (Regional Court, Klagenfurt) delivered a judgment by which BB and CC were convicted for having approved Loan HR/1061 to Skiper Hoteli. They were acquitted in respect of the other charges. GR and HS were acquitted. More specifically, HS was acquitted of the charge of having incited, by repeatedly seeking loans and submitting loan documentation between 2002 and 2005, BB and CC to commit crimes. GR was acquitted of the charge of having participated, between 2003 and 2005 in the commission of the offences by BB and CC, in that he requested that the loans – including Loan HR/1061 – be granted, negotiated the loan, submitted loan documentation, and signed the relevant loan agreements. The referring court notes that the foregoing is apparent from the operative part of the judgment of the Landesgericht Klagenfurt (Regional Court, Klagenfurt), while it is apparent from the grounds thereof that Skiper Hoteli used Loan HR/1061 to acquire the immovable property and the shares at issue at prices significantly above their market value.

17. That judgment became final following the dismissal by the Oberster Gerichtshof (Supreme Court, Austria) of an appeal brought against it.

18. The referring court also notes that, prior to issuing on, 9 January 2015, the indictment referred to in point 15 above, the Klagenfurt PPO conducted, but discontinued due to a lack of evidence, the investigation against GR and HS in respect of acts other than those covered by the subsequent indictment, namely the use of Loan HR/1061 for the Skiper Hoteli project. In that respect, the referring court points out that the Klagenfurt PPO notified GR, on 9 January 2015, about the discontinuation of the investigation into the ‘Skiper case’. That notification was based on Paragraph 190(2) of the Strafprozeßordnung (Austrian Code of Criminal Procedure; ‘the StPO’) and contained information about the discontinuation of the proceedings, as regards HS, GR, BB and CC, concerning the offence of breach of trust under Paragraph 153(1) and (2) of the StGB, in so far as it was not covered by the indictment brought by the Klagenfurt PPO on the same date before the Landesgericht Klagenfurt (Regional Court, Klagenfurt), due to a lack of evidence, in particular as regards the intention to cause damage, or due to the absence of specific and sufficient evidence substantiating punishable criminal behaviour. It also follows from the order for reference that HS requested and obtained from the Austrian authorities a communication confirming that discontinuation.

19. In the referring court’s view, in those circumstances, it is possible that (i) the facts referred to in the enacting terms of the indictment of the Pula PPO; (ii) the facts referred to in the enacting terms of the indictment of the Klagenfurt PPO; (iii) the facts referred to in the operative part and the grounds of the final judgment of the Landesgericht Klagenfurt (Regional Court, Klagenfurt); and (iv) the facts which were the subject of the discontinued investigation conducted by the Klagenfurt PPO may be considered to have the force of res judicata due to the inextricable link in time, space and substance between them.

20. However, the referring court explains that, when it comes to the application of the principle ne bis in idem, the Croatian courts are able to consider only the facts referred to in the specific parts of a given procedural decision, such as the enacting terms of an indictment or the operative part of a judgment. The referring court explains that that practice, in respect of which no additional details are provided in the order for reference, reflects the understanding that it is only to this extent that the procedural acts at issue become final.

21. In those circumstances, the Županijski sud u Puli-Pola (Pula County Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘In assessing whether there has been an infringement of the [principle ne bis in idem], is it possible to compare only the facts cited in the enacting terms of the indictment of the [Pula PPO] of 28 September 2015 with the key facts cited in the enacting terms of the indictment of the [Klagenfurt PPO] of 9 January 2015, and in the operative part of the judgment of the Landesgericht Klagenfurt [Regional Court, Klagenfurt] of 3 November 2016, upheld by the judgment of the Oberster Gerichtshof [Austrian Supreme Court] of 4 March 2019, or is it possible to compare the facts cited in the enacting terms of the indictment of the [Pula PPO] with the facts cited in the grounds of the judgment of the Landesgericht Klagenfurt [Regional Court, Klagenfurt] of 3 November 2016, upheld by the judgment of the Oberster Gerichtshof [Austrian Supreme Court], and which were the subject of the preliminary investigation conducted by the [Klagenfurt PPO] against several persons, in particular against GR and HS, and which were subsequently omitted from the indictment by the [Klagenfurt PPO] of 9 January 2015 (and were not cited in those enacting terms)?’

22. Written observations have been submitted by HS, GR, Pula PPO, the Austrian and Croatian Governments, as well as by the European Commission. Those interested parties presented oral argument at the hearing that was held on 11 January 2023.

23. By its sole question referred for a preliminary ruling, the referring court wishes to ascertain, in essence, the correct reference framework to be used in order to verify whether the proceedings pending before it are precluded by the principle ne bis in idem, enshrined in Article 54 of the CISA, because they may concern the same acts as those at issue in previous proceedings which have been brought to an end in another Member State.

24. Before turning to the interpretation of Article 54 of the CISA in order to provide a response to that question (B), I will address the plea of inadmissibility raised by the Austrian Government which is based on that government’s view that, in essence, both sets of proceedings concern different material facts (A).

25. The Austrian Government considers that the present request for a preliminary ruling is inadmissible because the question referred is hypothetical. In its view, the proceedings pending before the referring court and the earlier proceedings in Austria do not concern the same facts. That government points out that, whereas the proceedings in Austria concerned a financial loss suffered by an Austrian bank, the proceedings in Croatia relate to a financial loss suffered by a Croatian company. That government stresses that the Austrian proceedings could not possibly have concerned GR’s potential acts vis-à-vis that company, due to the lack of competence of the Austrian authorities in that respect, given that GR is a Croatian national and resident, while Skiper Hoteli is a company registered in Croatia.

26. Without raising a plea of inadmissibility, the Pula PPO and the Croatian Government share, in essence, the same view, while HS and GR argue to the contrary.

27. In that respect, I observe that, while the precise scope of the discontinued part of the proceedings in Austria is not clearly explained in the order of reference, it follows therefrom that, in the referring court’s view, there may, in fact, be an overlap between the proceedings that took place in Austria and the proceedings pending before it. Indeed, in that court’s view, the principle ne bis in idem, enshrined in Article 54 of the CISA, may affect the course of the proceedings pending before it, depending on the scope of the examination to be carried out in that regard.

28. In so far as the Austrian Government wishes to call into question that view, I observe that, in the context of proceedings under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. (5) It is for the referring court alone to assess the existence and the extent of the (factual) overlap between the two sets of proceedings at issue. The Court should, for its part, proceed on the assumption, made by the referring court, that there may be such an overlap and consider, accordingly, that the question referred is relevant for the outcome of the proceedings pending before that court and therefore admissible.

29. By its question, the referring court enquires whether, for the purposes of applying the principle ne bis in idem enshrined in Article 54 of the CISA, it may have regard only to the key facts referred to in the enacting terms of the indictment, issued by a public prosecutor’s office of another Member State and in the operative part of a final judgment handed down in that other State, or whether it must also take into account the facts mentioned in the grounds of that judgment in respect of which the prosecution has been discontinued.

30. I recall that Article 54 of the CISA provides that ‘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, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

31. That provision enshrines, within the EU legal order, the prohibition of double jeopardy in a cross-border context, also laid down in more general terms in Article 50 of the Charter, which, as the Court recalled, must guide the interpretation of Article 54 of the CISA. (6)

32. The protection afforded by the principle ne bis in idem, as laid down in Article 54 of the CISA, is triggered when two main conditions are satisfied: (i) the identity of the acts concerned by both sets of proceedings at issue (7) and (ii) the existence of a final decision in another Member State in respect of those acts. Moreover, where a penalty has been imposed, that penalty must have been enforced, must be in the process of being enforced or must no longer be capable of being enforced.

33. That ‘enforcement’ condition (8) is not at issue in the present case, which relates, as I already observed, to the correct reference framework to be used for the verification of whether the condition related to ‘idem’ is met.

34. In the following section, I will explain the reasons which lead me to consider that Article 54 of the CISA makes it necessary for a national court to take into account not only the facts described in specific parts of the procedural decisions issued in another Member State but also those described in other parts of those decisions, or possibly elsewhere, in order to verify whether proceedings pending before it concern the same acts (idem) as those which were examined in previous proceedings brought to a close by a final decision (1). For the sake of completeness, I will then address the second element of the principle ne bis in idem, relating to the ‘final’ nature of the decision which must exist, in conjunction with the identity of the acts, in order for the protection provided by that principle to be triggered. Indeed, the parties to the present proceedings commented extensively on whether the condition concerning the ‘final’ nature of the decision was satisfied when the Klagenfurt PPO decided to discontinue in part the proceedings at issue (2).

1. The correct reference framework for the condition of ‘idem’

35. As noted already, the referring court explains that, as a matter of practice, the Croatian courts may only have regard to certain parts of the procedural acts, such as the enacting terms of an act of indictment or the operative part of a judgment, for the purposes of examining whether the proceedings pending before them concern the same facts as those at issue in previous criminal proceedings closed by a final decision and are thus precluded by the principle ne bis in idem. By its question, the referring court thus wishes to ascertain, in essence, whether Article 54 of the CISA permits such an interpretation of the principle of ne bis in idem or whether a broader assessment is required.

36. More specifically, it follows from the order for reference that, as a consequence of the practice described above, the referring court does not appear to be in a position to take into account facts mentioned in the grounds of the judgment of 3 November 2016 of the Landesgericht Klagenfurt (Regional Court, Klagenfurt) in respect of which the prosecution was discontinued and which concern, according to the referring court, first, the circumstance that the acquisition of the immovable property and shares at issue by Skiper Hoteli was made using the funds from Loan HR/1061 and, second, the circumstance that the purchase price was, in both cases, substantially above the market value of those assets.

37. While the Croatian Government and the Pula PPO submit that it ought to be possible to limit the examination in this way, HS, GR, the Austrian Government and the Commission argue to the contrary.

38. I agree with the latter parties. More specifically, I agree with the Commission that a national practice limiting, in the manner described above, the examination of whether the proceedings pending before a national court concern the same acts as previous proceedings concluded by a final decision is excessively restrictive since, in essence, it may result in that national court disregarding the existence of a final decision adopted in another Member State in respect of the same acts.

39. Although neither the wording of Article 54 of the CISA nor the wording of Article 50 of the Charter provide specific guidance in that respect, that conclusion follows, in my view, from the relevant context of Article 54 of the CISA – a context which is composed of other provisions of that instrument – and is further confirmed by the considerations outlined in Article 3(2) TEU (9) which, as the Court has confirmed, must guide the interpretation of Article 54 of the CISA. (10)

40. First, as regards the relevant context, Article 57 of the CISA lays down rules for cooperation between the authorities of the respective State with a view to exchanging information about the possible existence of previous criminal proceedings closed by a final decision.

41. More precisely, Article 57(1) of the CISA obliges authorities to request, where they deem it necessary, relevant information from their counterparts located in a different Contracting Party if they have reason to believe that charges brought against a given person relate ‘to the same acts as those in respect of which the person’s trial has been finally disposed of in another Contracting Party’. Article 57(2) thereof lays down an obligation to provide the information requested ‘as soon as possible’ and, significantly, to take that information ‘into consideration as regards further action to be taken in the proceedings under way’.

42. Given the general wording of that provision, it follows that the information which can be requested, and which must be provided under that mechanism, may exist in various forms. In contrast to that general wording, I agree with the Commission that by limiting the information that a national court can take into account to that which is included in a specific part of a procedural act, the national practice at issue seriously limits the practical effect of that cooperation mechanism. In casu, when resorting to that mechanism in order to enquire as to whether the persons concerned (such as GR and HS) have been the subject of criminal proceedings which have been definitively brought to a close in Austria, the national practice described above would in fact oblige the national court to consider only the information provided in specific parts of procedural acts, to the exclusion of any other information that that court might receive from the Austrian authorities.

43. It should be recalled that the right flowing from the principle ne bis in idem is a fundamental right, enshrined in Article 50 of the Charter, (11) as correctly pointed out by the Commission. The specific manner of verifying whether there has already been a final decision in respect of the same material facts must thus be construed such as to provide effective protection of that right. (12)

44. Second, the Court has repeatedly ruled that the objective of Article 54 of the CISA is to ensure that ‘a person whose trial has been finally disposed of is not prosecuted in several Contracting States for the same acts on account of his [or her] having exercised his [or her] right to freedom of movement’. (13) That being said, the Court has also added that Article 54 of the CISA must be interpreted not only in the light of the necessity to ensure the free movement of persons but also in the light of the need to promote the prevention and combating of crime. (14)

45. While the Court has previously identified certain situations in which the protection afforded by the principle ne bis in idem could not be triggered, as to do so would lead to impunity, (15) the national practice as described in the present case by the referring court may lead to an equally undesirable, albeit opposite result. Indeed, it may lead to a situation in which the protection afforded by the principle ne bis in idem will be denied due to considerations that are purely formalistic in nature, since the grant of that protection will depend on the legal form in which the information about previous proceedings is given and, by the same token, on the different traditions which, as the Austrian Government and the Commission have pointed out, may exist in different Member States with regard to the way in which such information is conveyed. In that regard, the Court has confirmed that Article 54 of the CISA must be interpreted in the light of its object and purpose rather than in the light of ‘procedural or purely formal matters, which, after all, vary as between the Member States concerned’. (16)

46. Furthermore, as regards the relevance of the statement of reasons for a given procedural decision, the Court has previously emphasised that such a statement is of crucial importance for the verification of whether the acts at stake have already been the subject of a final decision – which is, as I have indicated, one of the two main conditions for the principle ne bis in idem to apply. (17)

47. I do not see any reason why the same relevance should not be attached to the statement of reasons in such or any other decision when it comes to the assessment of the other condition for that principle to apply, which relates to ‘idem’.

48. Moreover, I do not see why such an assessment should necessarily end with the consideration of the statement of reasons, to the exclusion of information made available from other sources. In that respect, as has already been recalled in point 45 of the present Opinion, the form and the content of different acts that may be adopted within a given criminal proceedings differ from Member State to Member State. While in some Member States all the material facts concerned by the criminal proceedings may need to be stated in the operative part of the respective procedural act, in others the relevant information may be indicated in other parts of such act, or even in a different act to which reference may be made.

49. I note that the Croatian Government has explained that – under Croatian law – the effect of res judicata comes into play only with regard to the operative part of the relevant procedural act. In this respect, I would observe, first, that while the understanding of the effects of res judicata may differ depending on the legal order concerned, (18) such an understanding cannot, in any event, affect the interpretation of the principle ne bis in idem as enshrined in EU law. Second, it may be that consideration of the operative part alone is simply not sufficient to understand the scope of the act itself when the elements necessary for that purpose are disclosed in parts other than the operative part. In that respect, the Austrian Government explained at the hearing that, as regards the present case, the precise scope of the part of the proceedings which was discontinued by the Klagenfurt PPO must be established on the basis of different acts adopted during the course of the criminal proceedings.

50. Therefore, obliging the State authorities to limit themselves to considering the operative part of the relevant procedural act, without providing them with any room to accommodate other approaches to the description of the material facts concerned by criminal proceedings that may exist in a different Member State may result in the effective deprivation of the protection afforded by the principle ne bis in idem for the sole reason that that decision was adopted in another Member State, where the practice differs from that of the Member State in which the subsequent proceedings are being conducted.

51. In that regard, I am of the view that the national court, which is tasked with determining whether the proceedings pending before it are precluded by the principle ne bis in idem, must be able to take into account all available information relating to previous criminal proceedings which have been definitively closed. I therefore conclude that Article 54 of the CISA shall be interpreted as meaning that, for the purpose of applying the principle ne bis in idem enshrined in that provision, account must be taken of all the relevant information about the material facts covered by previous criminal proceedings conducted in another Member State and closed by a final decision and not be limited to facts stated in certain parts of procedural acts adopted within those previous criminal proceedings, such as in the enacting terms of an act of indictment or the operative part of a judgment.

52. Having clarified that matter, I wish to refer to the extensive comments that the parties to the present proceedings have made on the question of whether both sets of proceedings at issue concern indeed the same acts. In that respect, I wish briefly to recall that the condition relating to ‘idem’, is understood as the ‘identity of the material facts’, and it is considered to be met when there is ‘a set of concrete circumstances stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space’. (19)

53. In that context, I do not consider that the focus should be on only the ‘key facts’ referred to in the wording of the question, but rather on all relevant facts that, however, for the condition relating to idem to be met, must be the same, and not simply similar. (20)

54. Having made those remarks, I will now consider briefly, for the sake of completeness, the element of the principle ne bis in idem that relates to the existence of a ‘final decision’.

55. It does not appear to be disputed in the present proceedings that the acts concerned by the final judgment of 3 November 2016 of the Landesgericht Klagenfurt (Regional Court, Klagenfurt) enjoy the protection of the prohibition of double jeopardy, as laid down in Article 54 of the CISA. However, the same level of agreement does not seem to exist among the parties when it comes to the acts covered by the part of the criminal proceedings in Austria which the Klagenfurt PPO decided to discontinue due to a lack of evidence. In the present section, I will thus briefly recall the conditions under which a decision of the public prosecutor to discontinue proceedings can be considered to be final for the purpose of Article 54 of the CISA.

56. It follows from the Court’s case-law that the protection provided under Article 54 of the CISA is triggered not only by final judicial decisions but also by certain decisions of public prosecutors, even when they ‘are adopted without involvement of a court and do not take the form of a judicial decision’. (21)

57. For that legal effect to be produced, the decision to discontinue the proceedings, first, must definitely bar, under the applicable national law, further prosecution for the same acts, and, second, must be given after a determination has been made as to the merits of the case. (22)

58. While the first condition concerns the verification of whether the national law relates to the decision of a public prosecutor which guarantees that the person concerned by the criminal proceedings will not be answerable again in respect of the same acts (which, in short, amounts to a national guarantee of ne bis in idem), (23) the second condition presupposes that the decision to discontinue proceedings was made after a genuine examination of the available body of evidence, in the absence of any element that would undermine the mutual trust of the Member States in their respective systems of criminal justice. (24)

59. In the present case, the Klagenfurt PPO took the decision to discontinue in part the proceedings on the basis of Paragraph 190(2) of the StPO. It is not entirely clear in what form that decision was delivered. In that connection, the order for reference mentions a communication by the Austrian authorities to GR’s legal representative on 9 January 2015, according to which that partial discontinuation also concerned HS, BB and CC.

60. The order for reference indicates that a decision adopted on the basis of Paragraph 190(2) of the StPO is, under Austrian law, final and means that the same acts cannot form the subject of new proceedings. The Austrian Government confirmed that interpretation at the hearing, explaining that, when adopting a decision pursuant to Paragraph 190(2) of the StPO, the public prosecutor puts an end to the proceedings because the available evidence indicates that a subsequent acquittal is more likely than a finding of guilt. That government also explained that such a decision produces the effect of res judicata and precludes further proceedings in respect of the same acts.

61. The Commission has expressed doubts in that respect, referring to Paragraph 193(2) of the StPO which appears to allow the proceedings to continue when the person concerned has not been heard and no measure of coercion has been adopted in respect of him or her, or in a situation where new evidence has emerged. Due to the lack of information in the case file, the Commission nevertheless considers that no position can be taken as to whether that possibility does or does not prevent the decision at issue from being considered to be ‘final’ for the purposes of Article 54 of the CISA.

62. Like the Commission observes, I cannot help but refer to the statement of the Austrian Government mentioned above, confirming the final nature of a decision adopted on the basis of Paragraph 190(2) of the StPO, and draw the referring court’s attention to the cooperation mechanism provided for in Article 57 of the CISA. (25) The issue of how the decision at issue is to be characterised must nevertheless, and in any event, be distinguished from the issue of whether it was taken after a determination of the merits of the case was made. The case file indicates that the proceedings were discontinued, in essence, because of a lack of evidence pointing to punishable criminal behaviour. In the absence of more detailed information, I do not consider it possible to provide further guidance to the referring court beyond the key elements of the Court’s case-law, already referred to above, which clarify the conditions under which a decision of a public prosecutor to discontinue proceedings may trigger the protection afforded by the principle ne bis in idem.

63. In the light of the foregoing, I suggest that the Court should reply to Županijski sud u Puli-Pola (County Court, Pula, Croatia) as follows:

Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders

meaning that, for the purpose of applying the principle ne bis in idem enshrined in that provision, account must be taken of all the relevant information about the material facts covered by previous criminal proceedings conducted in another Member State and closed by a final decision and not be limited to facts stated in certain parts of procedural acts adopted within those previous criminal proceedings, such as in the enacting terms of an act of indictment or the operative part of a judgment.

2 Convention of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19).

3 Narodne novine, No 56/90, 135/97, 08/98, 113/00, 124/00, 28/01, 41/01, 55/01, 76/10, 85/10, 05/14.

4 Narodne novine, No 152/08, 76/09, 80/11, 121/11 – consolidated text, 91/12 – judgment of the Ustavni sud (Constitutional Court, Croatia), 143/12, 56/13, 145/13, 152/14, 70/17 and 126/19).

5 See, inter alia, judgment of 16 July 1998, Dumon and Froment (C‑235/95, EU:C:1998:365, paragraph 25 and the case-law cited).

6 See, for example, judgment of 29 June 2016, Kossowski (C‑486/14, EU:C:2016:483, paragraph 31 and the case-law cited, ‘the judgment in Kossowski’).

7 That condition is understood as, in short, identity of material facts irrespective of their legal classification under national law. See, for instance, judgments of 18 July 2007, Kraaijenbrink (C‑367/05, EU:C:2007:444, paragraph 26 and the case-law cited), and of 16 November 2010, Mantello (C‑261/09, EU:C:2010:683, paragraph 39). In the context of Article 50 of the Charter, see, for instance, judgment of 22 March 2022, bpost (C‑117/20, EU:C:2022:202, ‘the judgment in bpost’, paragraphs 33 and 34 and the case-law cited). On the terms of ‘acts’ (expressly referred to in Article 54 of the CISA) and ‘facts’ (used, in particular, in the wording of the question referred in this case), see Opinion of Advocate General Bobek in Nordzucker and Others (C‑151/20, EU:C:2021:681, footnote 17).

8 The compatibility of that condition with Article 50 of the Charter was at issue in judgment of 27 May 2014, Spasic (C‑129/14 PPU, EU:C:2014:586).

9 That provision states that ‘the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’. My emphasis.

11 See, also, to that effect, Opinion of Advocate General Bot in Mantello (C‑261/09, EU:C:2010:501, points 9, 76, 86) in connection with Article 3(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1). That provision provides for a mandatory ground for refusing to execute a European arrest warrant if to do so would result in an infringement of the principle ne bis in idem.

12 In terms of an element relating to the external context, I note that no limit regarding the form in which information is given is provided in Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (OJ 2009 L 328, p. 42). The stated aim of that instrument is to prevent ‘the final disposal of the proceedings in two or more Member States thereby constituting an infringement of the principle of “ne bis in idem”’, as set out in Article 1(2)(a) of the Framework Decision 2009/948.

14 These two needs being stressed in Article 3(2) TEU, quoted above in footnote 10. See also the judgment in Kossowski, paragraphs 46 and 49.

15 Such as the situation in Kossowski involving the lack of genuine investigation or in Miraglia where the proceedings were brought to a close only because proceedings in respect of the same acts were pending in another Member State. See the judgments in Kossowski, paragraph 46 and 49, and Miraglia, paragraph 33.

17 Indeed, as the Austrian Government correctly observed, in Kossowski, the Court had to determine whether a decision of the public prosecutor adopted after a rather light examination of the items of evidence could be considered as ‘final’ for the purposes of Article 54 of the CISA. I will cover that aspect in more detail in the next section of the present Opinion. Nevertheless, at this juncture, I would stress that the Court referred to the statement of reasons of such a decision as the primary source of information to be consulted in order to establish whether the decision to discontinue the proceedings was taken after a determination of the merits of the case had been made (judgment in Kossowski, paragraphs 53 and 54, and operative part). Such determination is, as I will explain in more detail below, one of the two main conditions that allow a decision of a public prosecutor to discontinue the proceedings to be regarded as final.

18 The Court of Justice has held, in matters involving decisions of the courts of the European Union, that ‘the force of res judicata attaches not only to the operative part of [judicial] decision, but also to the ratio decidendi of that decision which is inseparable from it’. Judgment of 19 April 2012, Artegodan v Commission (C‑221/10 P, EU:C:2012:216, paragraph 87 and the case-law cited). See also judgment of the General Court of 2 March 2022, Fabryki Mebli ‘Forte’ v EUIPO – Bog-Fran (Furniture) (T‑1/21, not published, EU:T:2022:108, paragraph 26 and the case-law cited).

19 Judgment in bpost, paragraph 37 and the case-law cited. The Court thus slightly reworded the test used previously referring to ‘a set of facts which are inextricably linked together in time, in space and by their subject matter’. See, for example, judgment of 18 July 2007, Kraaijenbrink (C‑367/05, EU:C:2007:444, paragraph 27 and the case-law cited).

20 Judgment in bpost, paragraph 36 stating that ‘the “idem” condition requires the material facts to be identical. By contrast, the non bis in idem principle is not intended to be applied where the facts in question are not identical but merely similar’. In the same vein, it was observed that ‘that is naturally with the caveat that it might happen that the subsequent proceedings concerns only a part of the facts (temporal, substantive) taken into account in the previous one. However, the bottom line is that to the extent that the two sets of facts do indeed overlap, there must be identity within that overlap’. Opinion of Advocate General Bobek in bpost (C‑117/20, EU:C:2021:680, point 135).

21 Judgment in Kossowski, paragraph 39 and the case-law cited. The same conclusion was reached by the European Court of Human Rights (‘ECtHR’). ECtHR, 8 July 2019, Mihalache v. Romania, CE:ECHR:2019:0708JUD005401210, §§ 94 and 95.

22 See the judgment in Kossowski, paragraphs 34 and 42 and the case-law cited.

23 As first held by the Court in judgment of 22 December 2008, Turanský (C‑491/07, EU:C:2008:768, paragraphs 35 and 36). See also judgment of 5 June 2014, M (C‑398/12, EU:C:2014:1057, ‘M’, paragraphs 31 and 32; ‘the judgment in M’), and the judgment in Kossowski, paragraph 35.

24 Which can materialise in the absence of a ‘detailed investigation’ as described in the circumstances of the case which led to the judgment in Kossowski, paragraphs 48 to 53. In a similar vein, the protection afforded by the principle ne bis in idem is not triggered if the decision to close the criminal proceedings was made due to the fact that the prosecution proceedings has begun in another Member State. See the judgment in Miraglia, paragraphs 30 to 33.

25 I note that the Court concluded in the judgment in M that the possibility of reopening proceedings on the basis of new evidence, as provided under Belgian law, did not affect the final nature of the judicial decision of ‘non-lieu’ by which the Belgium court decided not to commit the person concerned by the criminal proceedings for trial. M, paragraphs 38 to 40. I note that a decision taken on the basis of Paragraph 190 of the StPO appears to also be at issue in the pending case C‑147/22, Központi Nyomozó Főügyészség.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> INTER CONSULTING (Judicial cooperation in criminal matters - Schengen Agreement - Opinion) [2023] EUECJ C-726/21_O (23 March 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C72621_O.html Cite as: [2023] EUECJ C-726/21_O, ECLI:EU:C:2023:240, EU:C:2023:240

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