This thesis looks at the EU ne bis in idem principle. In particular it examines if this principle that no one shall be held liable twice for the same act, contains an enforcement requirement. Because the ne bis in idem principle is codified in different sources of EU law which all have slightly different wordings, a (national) judge may be confronted with the difficult question as to what provision to apply in a given case. The author of this thesis has selected a judgment of a German Court that well illustrates this dilemma and which shows the relevance and topical interest of this problem, for which as yet no clear guidance has been provided by the European Court of Justice (ECJ). In this Boere case a German Court applied the ne bis in idem principle as laid down in Article 54 CISA and concluded that enforcement was an essential element of the ne bis in idem principle. The thesis introduces this case in a well-structured manner and critically reflects upon the judgment of the German Court. By taking this case a starting point, the author sets out clearly which underlying questions concerning the hierarchy between the different sources of EU law must be answered before a conclusion in a particular ne bis in idem case can be drawn.
The author of this thesis argues that Article 54 CISA – as applied by the German Court in the Boere case – is incompatible with Article 50 EuCFR, a provision which does not contain an enforcement requirement. She thereby analyses the relation between these two source of law – the Schengen acquis and the EU Charter of Fundamental Rights – in a profound, refreshing and well-substantiated manner. Particularly the discussion of relevant ECJ case-law is good and comprehensive. The author subsequently assesses whether the incompatibility of Art 54 CISA with Art 50 EuCFR (with EU law in general) can be justified. Here again, she addresses a relatively new question.
This thesis is well-researched and reasonably convincing. The author has persuasively shown that it would be desirable if the ECJ would give a ruling on the question.
Table of Contents
1. Introduction and background
1.1 Introduction
1.2 The origin of the sources of the ne bis in idem principle in the European Union
1.3 Ne bis in idem-analysis and comparison of the relevant articles
1.4 The case of Boere
1.4.1 Facts of the case
1.4.2 Judgment and reasoning
1.4.3 Criticism of the judgment
2. Is an enforcement requirement mandatory?
2.1 Status of Schengen Law
2.2 Status of the Charter
2.3 Hierarchy between Article 54 CISA and Article 50 EuCFR
2.4 The compatibility of Article 54 CISA with EU Law
2.4.1 Incompatibility of Art 54 CISA with Article 50 EuCFR
2.4.2 The influence of general principles
2.4.2.1 Ne bis in idem as a general principle
2.4.2.2 The fundamental rights as enshrined in the ECHR as general principles
2.4.2.3 Scope of the ne bis in idem general principle regarding enforcement
2.4.3 Interim conclusion
2.5 Justification of the enforcement requirement
2.5.1 Justification on the basis of Article 52 (1) EuCFR
2.5.2 Proportionality
2.5.2.1 The impact of mutual recognition
2.5.2.2 Influence of Free Movement Rights
2.5.2.3 Interim conclusion
2.5.3 Justification using Article 54 CISA as a concretization of Article 50 EuCFR
2.5.4 Interim conclusion
3. The implication of this outcome for European Union Law
3.1 Consequences for Article 54 CISA
3.2 Consequences for the European Arrest Warrant
4. Final conclusion
Research Objectives & Topics
This thesis examines the scope of the "ne bis in idem" principle within the European Union, specifically questioning whether the principle requires an enforcement of a primary judgment. The research investigates the legal relationship and hierarchy between Article 54 of the Convention Implementing the Schengen Agreement (CISA) and Article 50 of the European Charter of Fundamental Rights (EuCFR), particularly in light of cross-border legal scenarios.
- The divergence between Article 54 CISA and Article 50 EuCFR regarding the "enforcement requirement."
- Analysis of the "Boere" case as a practical application of the ne bis in idem principle in Germany.
- The hierarchy of EU legal sources, specifically the status of Schengen law versus primary EU law (the Charter).
- Proportionality and the potential justification of enforcement requirements under EU law.
Excerpt from the Book
1.4.1 Facts of the case
The former SS member Heinrich Boere was accused of committing three murders. It was determined that Boere was a member of the SS and part of the “Kommando Feldmeijer”. This “Kommando” was supposed to kill people belonging to the resistance. During three of these occasions Boere shot three killing shots. After World War II Boere was imprisoned in the Netherlands, but escaped police custody in 1947. In October 1949 a “Bijzondere Gerichtshof te Amsterdam” [Special Court of Amsterdam] convicted him in absentia and sentenced him to death. Later this punishment commuted to life imprisonment. This sentence was never enforced. After hiding until 1954 in the Netherlands he moved to Germany where he lived undisturbed by the judicial authorities. In 1980, the Netherlands requested his extradition, but the Dutch authorities were unsuccessful in their attempt. At this time Germany did not extradite its citizens and a German Court ruled that Boere could have acquired German citizenship upon joining the SS. In 1985, only two years later, another German court declined to force Boere to serve his Dutch sentence in a German jail, holding that he had not been present to defend himself at the 1949 trial.
In the beginning of 2009 a new trial was started in the LG Aachen against Mr Boere for the same crimes as for which he had been convicted by the “Bijzondere Gerichtshof te Amsterdam” in 1949.
Chapter Summary
1. Introduction and background: Introduces the research topic and provides context regarding the ne bis in idem principle through the historic Boere case.
2. Is an enforcement requirement mandatory?: Analyzes the legal hierarchy and status of Schengen law versus the Charter to determine if an enforcement requirement is legally necessitated.
3. The implication of this outcome for European Union Law: Discusses the practical consequences of the research findings for existing legal articles and the European Arrest Warrant.
4. Final conclusion: Synthesizes the findings, arguing that the ne bis in idem principle in the EU does not inherently entail an enforcement requirement as codified in the Charter.
Keywords
Ne bis in idem, Article 54 CISA, Article 50 EuCFR, Enforcement requirement, European Union Law, Schengen acquis, Charter of Fundamental Rights, Cross-border, Criminal proceedings, Legal certainty, Proportionality, Mutual recognition, Judicial cooperation, Boere case, Fundamental rights.
Frequently Asked Questions
What is the central focus of this thesis?
The thesis focuses on the interpretation of the "ne bis in idem" principle within the EU, specifically examining whether an enforcement requirement exists for a prior criminal conviction to be recognized across borders.
What are the primary themes discussed?
The core themes include the hierarchical relationship between the Schengen Agreement and the EU Charter of Fundamental Rights, the criteria for cross-border criminal proceedings, and the evolving nature of judicial cooperation.
What is the primary research goal?
The goal is to clarify the scope of the ne bis in idem principle and determine if the different wordings in Article 54 CISA and Article 50 EuCFR create conflicting obligations for Member States.
Which methodology is employed?
The author uses a legal analysis method, focusing on case law from the European Court of Justice (ECJ) and national courts (specifically the LG Aachen) to compare and contrast legal provisions.
What does the main body cover?
It covers the historical origins of the principle, the specific conflict between Schengen-based law and Charter-based law, and an assessment of whether enforcement requirements can be justified through the principle of proportionality.
Which keywords define this work?
Key terms include ne bis in idem, Article 54 CISA, Article 50 EuCFR, enforcement requirement, European Union Law, and the principle of mutual recognition.
How does the Boere case influence the argument?
The Boere case serves as a critical real-world example of how differing interpretations of the enforcement requirement lead to significant discrepancies in the outcome of criminal proceedings.
What is the final conclusion regarding the enforcement requirement?
The author concludes that the enforcement requirement is not strictly necessary for the application of the ne bis in idem principle, as the principle should be viewed as providing a fundamental protection against being tried twice.
- Citar trabajo
- LL.M. European Law (Leiden University) Jana Seydel (Autor), 2011, Enforcement or no Enforcement?, Múnich, GRIN Verlag, https://www.grin.com/document/174432
