delivered on 8 June 2023 (1)

Case C‑58/22

joined parties:

Parchetul de pe lângă Curtea de Apel Craiova

(Request for a preliminary ruling from the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania))

(Reference for a preliminary ruling – Charter of Fundamental Rights of the European Union – Article 50 – Principle ne bis in idem – Discontinuance of proceedings – Decision of a public prosecutor – Assessment of the merits – Detailed investigation – Examination of the evidence)

1.The principle ne bis in idem (or prohibition of double jeopardy) – entailing the right of individuals not be subject to criminal proceedings or punished more than once for the same facts – occupies a prominent place in most national and international systems of criminal law. (2) Albeit with different nuances, that principle is enounced in several national constitutions and international conventions. More importantly for the present case, it is expressly recognised as a fundamental right in Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in Article 4 of Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘Protocol No 7’).

2.In the last years, a significant number of judgments were given by the Court of Justice and by the ECtHR – both courts often sitting in extended formations – with a view to clarifying the conditions required, within the respective legal systems, for the application of the principle ne bis in idem. The two strands of case-law flowing from those courts show significant cross-fertilisation and convergence. Far from merely restating or refining the (existing) law, those strands of case-law also introduced certain important developments.

3.The present case offers an opportunity to further explain and elaborate on some recent developments with regard to both the ‘bis’ and ‘idem’ components of the principle. Indeed, the referring court asks the Court to shed more light, in particular, on the requirements that (i) a decision by a prosecutor to discontinue the proceedings be based on an assessment of the merits of the case, resulting from a detailed investigation, and (ii) the criminal liability of the alleged offender be duly examined.

II. Legal framework

4.Article 50 of the Charter, entitled ‘Right not to be tried or punished twice in criminal proceedings for the same criminal offence’, provides:

‘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 1 of Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (3) provides:

‘Romania shall, by 31 March of each year … report to the Commission on the progress made in addressing each of the benchmarks provided for in the Annex. …’

6.According to point 4 of the Annex to Decision 2006/928, the benchmarks to be addressed by Romania, referred to in Article 1 thereof, include ‘tak[ing] further measures to prevent and fight against corruption, in particular within the local government.’

7.Article 2(1) of Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector, (4) concerning ‘Active and passive corruption in the private sector’, requires Member States to take the necessary measures to ensure that certain forms of intentional conduct constitutes a criminal offence, when it is carried out in the course of business activities.

8.Article 4(1) and (2) of Protocol No 7, concerning the ‘Right not to be tried or punished twice’, provides:

‘1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

9.Article 6, of Legea nr. 135 din 1 iulie 2010 privind Codul de procedură penală (Law No 135 of 1 July 2010 laying down the Code of Criminal Procedure; ‘the Code of Criminal Procedure’), entitled ‘Ne bis in idem’, provides:

‘No one may be prosecuted or tried for an offence if a final judgment in criminal matters has already been handed down for the same acts, albeit with a different legal classification.’

10.Article 335 of the Code of Criminal Procedure, entitled ‘Proceedings in the event of the reopening of investigations’, states:

‘1. If it is subsequently found that the circumstance on which the discontinuance of the case is based does not exist, a more senior prosecutor than the one who issued the decision shall set aside the order and instruct the reopening of the investigations …

III. Facts, national proceedings and the question referred for a preliminary ruling

11.On 12 February 2014, the general meeting of a cooperative company decided to remove NR (‘the accused’) from her position as chair of the company. That decision was contested in court and annulled. The accused was then reinstated in her functions. In that dispute, the accused was represented by a lawyer to whom she had agreed to pay a ‘success fee’ of EUR 4400.

12.On 30 April 2015, the accused demanded that amount from five employees of the company; in return, she would have refrained from issuing decisions terminating their employment contracts. Since her financial demands were not met, the accused issued and signed those decisions. The employees concerned (‘the complainants’) lodged two complaints with identical content: one was filed with the competent police body on 8 June 2015, and another on 26 June 2015 with the Direcția Națională Anticorupție (National Anti-Corruption Directorate, Romania; ‘the NACD’).

13.These two complaints led to the opening of two sets of criminal proceedings, which run in parallel, and whose main steps will be outlined below. However, for the sake of clarity, the proceedings ensuing from the second complaint will be discussed first.

14.As mentioned, the complainants filed a (second) complaint on 26 June 2015 with the NACD. Taking the view that that complaint contained evidence of a possible act of extortion, the NACD referred the accused to the Parchetul de pe lângă Judecătoria Slatina (Public Prosecutor’s Office at the Court of First Instance, Slatina, Romania) (‘the Public Prosecutor’s Office of Slatina’), which had jurisdiction in the matter, and which opened a criminal case.

15.On 14 March 2016, the Public Prosecutor’s Office of Slatina ordered criminal proceedings in rem (5) to be brought for the offence of extortion. The competent police body interviewed the accused and the complainants. Some documents and a CD, containing an audio recording that the complainants had allegedly made on 30 April 2015, were also entered in the investigation file. Having examined that evidence, the police took the view that no crime had been committed and prepared a request for the case to be discontinued. On the basis of that request, on 27 September 2016, the prosecutor in charge of the case issued an order for dismissal (‘the order for dismissal of 27 September 2016’). That order was not appealed within the 20-day time limit provided for under national law and thus became final.

16.On 21 October 2016, the chief prosecutor of the Public Prosecutor’s Office of Slatina, disagreeing with the order for dismissal of 27 September 2016, decided to reopen the criminal proceedings at issue. The chief prosecutor noted, in particular, that the same matter was the subject of proceedings relating to the offence of passive corruption before the Parchetul de pe lângă Tribunalul Olt (Public Prosecutor’s Office at the Regional Court of Olt, Romania) (‘the Public Prosecutor’s Office of Olt’), where the investigations were at an advanced stage. In its view, proper administration of justice required that jurisdiction in the proceedings relating to the offence of extortion be declined in favour of the proceedings relating to the offence of passive corruption. The case was referred to the Judecătoria Slatina (Court of First Instance, Slatina, Romania) for confirmation of the reopening of the criminal proceedings.

17.On 21 November 2016, that court rejected the application, holding that the legal criteria for reopening the criminal proceedings had not been met. In its view, the fact that the same person was subject to investigation in another case before a different judicial body, and that that investigation was at an advanced stage, did not permit the rescinding of the decision to take no further action.

18.Following the (first) complaint of 8 June 2015, the Public Prosecutor’s Office of Olt, opened criminal proceedings against the accused alleging a case of passive corruption. In the trial before the Tribunalul Olt (Regional Court of Olt), the accused invoked the principle ne bis in idem, arguing that she had already been investigated for the same facts in the proceedings relating to the offence of extortion, and a final decision to take no further action in that respect had already been issued.

19.The Tribunalul Olt (Regional Court, Olt), rejected that defence on the ground that the criteria for the application of that principle had not been met. That court noted, inter alia, the different dates on which the two criminal complaints had been made, and that the proceedings relating to the offence of extortion were carried out in rem, unlike the proceedings concerning the offence of passive corruption. In addition, that court found that, in the proceedings relating to the offence of extortion, a detailed investigation had not been carried out, because insufficient evidence had been obtained, and because it had been investigated by a police officer. Accordingly, by judgment of 19 November 2018, that court sentenced the accused, inter alia, to one year and four months’ imprisonment for the offence of passive corruption.

20.The accused and the Public Prosecutor’s Office of Olt, appealed that judgment. By judgment of 20 October 2020, the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania) upheld the appeal, set aside the judgment under appeal, and ordered the closure of the criminal proceedings brought against the accused. That court found, in essence, that the complaints lodged by the complainants in the two proceedings were identical in content, and the proceedings which followed led to the gathering of similar evidence, thus triggering the application of the principle ne bis in idem.

21.An appeal on a point of law against that judgment was brought before the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania; ‘the HCCJ’). By decision of 21 September 2021, the HCCJ upheld the appeal, set aside the contested decision and referred the case back to the Curtea de Apel Craiova (Court of Appeal, Craiova). In its decision, the HCCJ, recalling the case-law of the Court of Justice and of the ECtHR in the matter, stated, in essence, that, although the principle ne bis in idem may apply in the case of decisions taken by public prosecutors that terminate proceedings, not all such decisions can be considered ‘final’. The HCCJ examined the order for dismissal of 27 September 2016 and found that it did not meet the ‘finality’ requirement, since it did not contain any assessment on the merits of the case. In particular, the public prosecutor in charge gave no reasoning for the order, and merely instructed the case for the offence of extortion to be discontinued.

22.Following the decision of the HCCJ, the case was brought before the Curtea de Apel Craiova (Court of Appeal, Craiova) for a re-examination of the appeals lodged by the accused and the Public Prosecutor’s Office of Olt against the judgment of 19 November 2018 of the Tribunalul Olt (Regional Court, Olt). However, harbouring doubts as to the proper interpretation of Article 50 of the Charter, the Curtea de Apel Craiova (Court of Appeal, Craiova) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is the ne bis in idem principle, as guaranteed by Article 50 of [the Charter], in conjunction with Romania’s obligations to address the benchmarks set out in [Commission Decision 2006/928], to be interpreted as meaning that a decision to take no further action, issued by the public prosecutor after obtaining essential evidence in the case, precludes another public prosecution from being brought against the same person, for the same acts, albeit with a different legal classification, since that decision is final – unless it is established that the circumstance on which the discontinuance was based does not exist, or new facts or circumstances have emerged which show that the circumstance on which the discontinuance was based no longer exists?’

23.Written observations in the present proceedings have been submitted by the Romanian Government and the Commission. Those interested persons also presented oral argument at the hearing on 22 March 2023.

24.In the present Opinion, I shall first deal with the jurisdiction of the Court to hear the present case (A), and then turn to the assessment of the question referred, which will be done in two steps: first, by providing an interpretation of Article 50 of the Charter which seeks to address the hermeneutic doubts expressed by the referring court (B); second, by providing that court with some guidance as to how Article 50 of the Charter may be applied in circumstances such as those at issue in the main proceedings (C). Lastly, I will offer some final 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 proposed in this Opinion in a broader context (D).

25.The Romanian Government contests the jurisdiction of the Court to hear the case. It argues that Article 50 of the Charter is inapplicable to the main proceedings since this case does not concern implementation of EU law within the meaning of Article 51 of the Charter. According to that government, given that the reports drawn up by the Commission under Decision 2006/928 did not identify any shortcomings with regard to the principle ne bis in idem, it must be held that no specific obligation had been imposed on Romania in that regard.

26.The Commission is of the opposite view. The Commission emphasises that the substantive criminal provisions that, according to the public prosecutor in the case pending before the referring court, are applicable to the conduct of the accused constitute implementation of Framework Decision 2003/568. (6) That triggers, in its view, the applicability of the Charter.

27.In that regard, I must say that I have some sympathy for certain arguments put forward by the Romanian Government.

28.At the outset, it is not in dispute that the case pending before the referring court is – simply put – purely internal to Romania, stemming from (i) conflicting views on the applicability of the principle ne bis in idem by different judicial authorities in Romania; (ii) expressed in the context of two different sets of criminal proceedings carried out therein; (iii) against conduct of alleged corruption that took place in Romania; and (iv) that lacks any cross-border element.

29.More importantly, I agree with the Romanian Government that the provisions of Decision 2006/928 cannot be interpreted in a manner which would over-extend its reach, with the consequence that any rule of Romanian substantive and procedural criminal law would fall within the scope of EU law. In my view, only matters which are strictly and directly related to the actual capacity of that Member State to address the specific benchmarks set out in Decision 2006/928 may be considered to fall within the scope of that decision.

For that purpose, the Court must be able to appreciate how, in concreto, the issues raised by the referring court could potentially hamper the Member State’s ability to discharge the obligations it undertook upon its accession to the European Union and which have been given concrete expression in Decision 2006/928.

In that respect, it should be borne in mind that the Court has already found that Decision 2006/928 imposes on Romania a specific obligation to address the benchmarks set out therein, since they ‘are formulated in clear and precise terms and are not subject to any conditions’. Romania is thus required, under that decision, to take all appropriate measures to meet the benchmarks as soon as possible, and to refrain from implementing any measure which could jeopardise that objective. (7)

One of the specific benchmarks of Decision 2006/928 is to ‘take further measures to prevent and fight against corruption’. (8) A specific obligation for Romania to fight corruption effectively follows from that provision, which precludes national rules that could in any way weaken that fight. (9)

The present case concerns a case of alleged corruption. The fact emphasised by the Romanian Government that the Commission reports do not refer to any possible issue with regard to the application of the principle ne bis in idem in Romania is, in my view, of no relevance in this context. What is, instead, relevant for the purposes of the present proceedings is whether the national rules that are applicable in the case at hand (substantive and procedural, permitting prosecution and barring prosecution) may have a direct impact on Romania’s ability to achieve the objectives set out in Decision 2006/928: in casu, preventing and fighting corruption.

In that regard, it should be pointed out that the legal issues raised by the referring court do not merely concern the specific case of the accused, for example, some allegedly wrong application of the relevant criminal provisions in the case at hand. Those issues concern diverging views on the conditions that must be satisfied for the principle ne bis in idem to apply. That is a principle of constitutional significance, whose interpretation is of systemic importance for both the European Union and the national systems of criminal law. As such, the answer to the question referred in the present case is likely to have repercussions in a large number of cases of corruption in Romania. Since the principle ne bis in idem bars further investigation and prosecution of alleged crimes, it cannot be ruled out that an overly broad interpretation of that principle could render Romania’s fight against corruption less effective.

In any event, the Romanian Government confirmed at the hearing that, as the Commission has argued, some of the substantive criminal provisions which are applicable in the case at hand constitute implementation of Framework Decision 2003/568, and in particular Article 2(1)(b) thereof. This means that, in the present case, we are not merely faced with a situation where EU law and national law co-exist in a given area – as was the case in Siragusa, (10) which the Romanian Government referred to. Indeed, some of the relevant provisions of national law implement EU law within the meaning of Article 51(1) of the Charter, which entails the application of that instrument. (11)

In the light of the above, I conclude that the Court has jurisdiction to hear the present case.

By its question, the referring court asks the Court, in essence, whether a person can be regarded as having been finally acquitted, within the meaning of Article 50 of the Charter, as a result of the adoption, by a public prosecutor, of an order to discontinue the proceedings, when that order contains no statement of reasons and merely refers to those contained in a report drawn up by the police in charge of the investigation.

That question raises, especially when read in the light of the explanations provided for by the referring court in its request for a preliminary ruling, a number of interpretative issues concerning the conditions that must be satisfied for the principle ne bis in idem to become applicable when a decision is adopted by a public prosecutor.

Before addressing those issues, two preliminary remarks are in order.

1. Preliminary remarks

First, I note that, both in their written and oral submissions, the Romanian Government and the Commission went to great lengths to explain the meaning of the various provisions of national law applicable in the case at hand, and to review the nature and content of the various acts of procedure issued in the two sets of proceedings before the Romanian judicial authorities.

Admittedly, it is important for the Court to be duly informed of the factual and legislative context of the questions referred, so that it can arrive at an interpretation of EU law which will be of use to the referring court. (12) A the same time, however, it should be stressed that it is not for the Court to rule on the interpretation of the relevant provisions of national law, to review the acts of the national proceedings and, more generally, to act as an arbiter between the conflicting findings of different national judicial authorities in a specific case.

The role of the Court in the context of a procedure based on Article 267 TFEU is to provide the referring court with all the elements of interpretation of EU law that will enable it to solve the dispute pending before it. (13) This means that, in a case such as the present one, the Court must clarify the conditions in which the principle ne bis in idem enshrined in Article 50 of the Charter is applicable, thus permitting the referring court to assess for itself whether or not a prosecutor’s decision to close an investigation without taking further action has given rise to a final ruling for that purpose. (14)

Second, when interpreting Article 50 of the Charter, I shall also make reference to the relevant case-law of the Court on Article 54 of the Convention Implementing the Schengen Agreement, (15) as well as to the case-law of the ECtHR concerning Article 4 of Protocol No 7.

In fact, the Court has held that Article 50 of the Charter and Article 54 of the CISA should be interpreted consistently since they both concern the same subject matter. (16) In addition, the Court stated that Article 50 of the Charter contains a right which corresponds to that provided for in Article 4 of Protocol No 7 and, consequently, it is necessary to take account of Article 4 of Protocol No 7 for the purpose of interpreting Article 50 of the Charter. (17)

Having said the above, I shall now turn to the assessment of the substantive issues raised by the present proceedings.

At the outset, it may be useful to recall that, in a nutshell, the principle ne bis in idem prohibits a duplication both of proceedings and of penalties of a criminal nature for the same facts and against the same person. (18) Accordingly, the key conditions for that principle to apply are: (i) the criminal nature of the proceedings, (ii) the ‘bis’ (duplication of proceedings), and (iii) the ‘idem’ (proceedings concerning the same facts and against the same person).

In the main proceedings, no doubt has been raised about the ‘criminal nature’ of both sets of proceedings in question. However, the question as to whether the ‘bis’ and the ‘idem’ conditions were satisfied gave rise to some disagreement between the national authorities involved in the proceedings.

Article 50 of the Charter precludes double prosecution and punishment where the person ‘has already been finally acquitted or convicted’. In that regard, the Court’s case-law has made clear that, for a criminal-law decision to be regarded as a final ruling on the facts subject to a second set of proceedings, ‘that decision must not only have become final but must also have been taken after a determination has been made as to the merits of the case’. (19)

There are thus two aspects of the decision in question that should be examined in order to determine whether a subsequent set of proceedings gives rise to duplication of proceedings precluded by Article 50 of the Charter: one concerns the nature of the decision (its ‘finality’), the other concerns the content thereof (whether it dealt with ‘the merits of the case’).

(a) Finality of the decision

As regards the finality requirement, there is an abundance of case-law of the Court in respect of Article 54 of the CISA. The wording of that provision may be slightly different from that of Article 50 of the Charter, but its essence is the same: it provides for the application of the principle ne bis in idem for any person ‘whose trial has been finally disposed of’. That condition requires, according to settled case-law, that the criminal-law decision in question brings the criminal proceedings to an end and definitively bars further prosecution, thus entailing, at the national level, the protection granted by the principle ne bis in idem. (20)

The fulfilment of such requirement must be assessed on the basis of the domestic law of the Member State in which that decision has been taken. (21) As the Court has consistently held, a decision which does not, under the law of the Member State in question, definitively bar further prosecution cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same set of facts against that person in another Member State. (22)

That being said, the definitive nature of a decision, and hence the triggering of the principle ne bis in idem, is not precluded by the fact that, in the national system in question, certain remedies exist which permit, in exceptional circumstances, the resumption of a trial. (23) A rule to that effect is expressly set out in Article 4(2) of Protocol No 7, according to which the principle ne bis in idem does not ‘prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case’.

On that basis, the ECtHR has stated that extraordinary remedies should not be taken into account for the purposes of determining whether the proceedings have reached a final conclusion for the purposes of the principle ne bis in idem. The ECtHR found that, although those remedies ‘represent a continuation of the first set of proceedings, the “final” nature of the decision does not depend on their being used’. (24) That reading was borne out – according to that court – by the Explanatory Report to the Protocol No 7, which referred to a decision being final if ‘it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time limit to expire without availing themselves of them’. (25)

The Court of Justice has expressly endorsed that approach in its judgment in M. Following the path traced by the ECtHR, the Court ruled that a criminal law decision which precludes the bringing of new criminal proceedings in respect of the same facts 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 the principle ne bis in idem. (26)

Admittedly, the difference between ‘ordinary remedies’, whose existence precludes the application of the principle ne bis in idem, and ‘extraordinary remedies’ which do not, may in some cases be difficult to grasp. The issue was examined in detail by the ECtHR in the recent judgment in Mihalache.

In essence, the Grand Chamber of the ECtHR found that, in order to determine whether a remedy is ‘ordinary’, the starting-point of the analysis is the relevant national law. However, that court made clear that it will carry out its own assessment on that point, having regard to all the relevant circumstances of the specific case. It will consider, in particular, the ‘foreseeability’ of the remedy. In that regard, the factors which will be taken into account include, according to the ECtHR, the accessibility of the remedy to the parties, the discretion afforded by law to authorised officials in the use of the remedy and – what is particularly important – the requirement to exercise the remedy within a specific time limit. (27)

The appropriateness of using the criterion of ‘foreseeability’ when assessing the ordinary or extraordinary nature of a remedy was however criticised in a Joint Concurring Opinion to the Mihalache judgment. According to that Opinion, the introduction of such a criterion may give rise to confusion. In the view of the judges authoring the Opinion, the only operational criterion is whether or not there is a time limit within which the remedy has to be exercised: the fact that one remedy has no time limit means that it is extraordinary. (28)

Regardless of this difference of opinion, I tend to agree with what appears to be common ground: the existence of a clear time limit for the exercise of the remedy should be the predominant criterion to determine its ordinary or extraordinary nature. In this context, I would perhaps also emphasise that, as follows from the very term ‘extraordinary’, any such remedy cannot consist in a procedure of review which is part of the normal course of the appeal process followed in the daily administration of criminal justice, which usually involves multiple instances of decision-making and/or adjudication, with a view to minimising the risk of judicial errors.

(b) Assessment of the merits

According to well-established case-law, in order to determine whether a criminal law decision constitutes a decision finally disposing of the case against a person, it is necessary, inter alia, that that decision is taken after a determination has been made as to the merits of the case. This follows, as the Court pointed out, from the very wording of Article 50 of the Charter, since the terms ‘convicted’ and ‘acquitted’ referred to in that provision necessarily imply that the accused person’s criminal liability has been examined, and that a determination in that regard has been made. (29)

The Court has also had the opportunity to clarify that a decision of the judicial authorities of a Member State by which an accused person is definitively acquitted because of the inadequacy or lack of evidence must be considered, in principle, to be based on a determination as to the merits of the case. (30)

In the same vein, I would say that an assessment of the merits includes the situation in which the proceedings are terminated and the charges dismissed because – despite the factual elements of the offence having being ascertained – there were grounds exonerating the presumed offender (for example, self-defence, state of necessity or force majeure), or making him or her unaccountable (for example, the person was underage or suffered from a severe mental disorder). (31)

By contrast, the Court has also made clear that decisions in which a person is acquitted, the charges dismissed, or the proceedings discontinued on mere procedural grounds or that, at any rate, do not involve any evaluation of the person’s criminal liability, cannot be considered ‘final’ for the purposes of the principle ne bis in idem. (32) That is typically the case, in my view, of proceedings terminated on grounds of, for example, amnesty, immunity, abolitio criminis, or for proceedings being time-barred. (33)

In this context, I should point out that case-law indicates that the requirement that the decision contains an assessment of the merits of the case – intended as criminal liability of the person being investigated – cannot be verified on a purely formal basis.

Obviously, when a decision of discontinuance is expressly based on procedural grounds, there is no need to do any additional verification: the decision is inherently incapable of triggering the principle ne bis in idem. However, when a decision is based on lacking or insufficient evidence, there is an additional step that is required. Indeed, as found by the Court in the judgment in Kossowski, echoed by the ECtHR in Mihalache, a true determination as to the merits of the case necessarily implies a detailed investigation. (34)

Those findings – with which I entirely agree – require some explanation.

(1) The need to verify the existence of a detailed investigation

In their case-law, both the Court and the ECtHR have extended the scope of protection of the principle ne bis in idem beyond the realm of judicial decisions stricto sensu. Both courts ruled that decisions of other public authorities, taking part in the administration of criminal justice at national level, on which national law confers powers to establish and punish unlawful conduct, such as public prosecutors, could also be considered ‘final’ decisions for the purposes of the principle ne bis in idem. That is so despite the fact that no court is involved in the process, and that the decision in question does not take the form of a judicial decision. (35)

That extension constitutes a significant improvement for the protection of the rights of individuals under criminal law and procedure. Nevertheless, I hardly need to point out that a decision of a prosecutor to discontinue proceedings during the investigation phase cannot be ipso facto equated with a decision of a court to acquit an individual, delivered after a proper trial has taken place, in which evidence is presented to the judge (or jury), discussed by the parties, and finally assessed by the judge (or jury).

As is well known, the criminal systems of the Member States contain a variety of legal regimes governing, on the one hand, the conditions in which prosecutors may or must investigate alleged offences and, where appropriate, institute criminal proceedings against the suspected offenders, and, on the other hand, the grounds on which criminal proceedings may be discontinued. For example, in a number of Member States, reasons relating to the lack of public interest, sufficient seriousness of the crime or complaint by the victim, past behaviour of the accused, or even budget constraints, constitute valid grounds for a prosecutor to close the investigation. (36)

In addition, regardless of whether, in the criminal system of a Member State, prosecution is in principle mandatory or discretionary, it is inevitable that considerations of judicial expediency, economy or policy (such as, for instance, current workload, enforcement priorities, financial and labour costs of the investigation) may influence the decisions of prosecutors to investigate, more or less proactively, an alleged offence or, conversely, to discontinue proceedings. It would be no more than wishful thinking to assume that every prosecutor in the European Union decides the fate of the investigations and proceedings of which he or she is in charge solely based on his or her intimate conviction about the guilt of the alleged offender, and his or her ability to establish that in court.

It seems to me that considerations of that kind may have an even greater weight when prosecutors are faced with trans-national crimes, taking place in and/or affecting two or more Member States, committed by offenders who take advantage of their EU law-based rights to move freely across the national borders. In those situations, it is clear that some prosecutors may be better placed than others to investigate successfully and, if need be, bring proceedings against the possible offenders. It is equally obvious that actual coordination of several prosecutors, based in different Member States, each working in his or her own language, possibly thousands of kilometres apart, and potentially ignoring the existence of parallel proceedings, is not something which can be taken for granted – notwithstanding the existence of specific instruments on this matter. (37)

Therefore, in a system based on mutual trust that applies trans-nationally, it is in my view absolutely crucial that the principle ne bis in idem is applicable only if the decision of a prosecutor to discontinue proceedings is based on the assessment of the merits of the case, which is the result of a detailed investigation, revealed by a thorough evaluation of a sufficiently comprehensive body of evidence.

Indeed, when the criminal liability of the person being investigated was excluded on the basis of an inadequate and fragmentary body of evidence, it may be safely assumed that the prosecutor’s decision was based, primarily, on reasons of judicial expediency, economy or policy.

Naturally, the fact that a prosecutor carried out a thorough evaluation of a sufficiently comprehensive body of evidence does not mean that, when taking the decision to terminate the proceedings, all doubts regarding the criminal liability of the person being investigated need necessarily be dispelled. In fact, a prosecutor may have to draw the necessary consequences from the fact that, regardless of his or her personal opinion about the guilt of the person concerned, a detailed investigation did not produce a body of evidence likely to support a conviction.

Yet, as long as the investigation was reasonably exhaustive and meticulous, the decision to close the proceedings can be equated to an acquittal. As mentioned in point 60 above, the Court has accepted that decisions based on the inadequacy or lack of the evidence must be considered, in principle, to be based on determination as to the merits of the case. In my view, this is the logical consequence, inter alia, of the principle of the presumption of innocence. (38)

The above considerations beg the following question: how should a determination as to whether a decision such as that at issue is based on a detailed investigation be made?

(2) Examination of the decision to discontinue proceedings

Whether a prosecutor’s decision to discontinue proceedings was based on a detailed investigation should be determined mainly on the basis of the statement of reasons contained in the body of decision itself (39) (where necessary, read in conjunction with the documents referred to and/or annexed thereto (40)). It is indeed that document which explains the grounds for the discontinuance and the elements of evidence relied on for that purpose.

For example, as the Court found in the judgment in Kossowski, the fact that – in a specific case – neither the victim nor a potential witness was interviewed during the investigations may be considered to be an indication that no detailed investigation was undertaken. (41) Conversely, as the ECtHR stated in Mihalache, where a criminal investigation has been initiated after an accusation has been brought against the person in question, the victim has been interviewed, the evidence has been gathered and examined by the competent authority, and a reasoned decision has been given on the basis of that evidence, such factors are likely to lead to a finding that there has been a determination as to the merits of the case. (42)

Hence, it is a case-by-case assessment that has to be made, mainly in the light of the actual content of the decision. (43) Should anything be unclear in that decision, nothing prevents the authorities in the second Member State from making use of the instruments of cooperation established within the EU legal system (44) in order to seek the clarifications needed from the authorities of the first Member State. (45)

However, for reasons of legal certainty and predictability, it is crucial that the main elements which permit an assessment of the ‘finality’ of a decision to discontinue proceedings should be included in the body of the decision (as the case may be, as completed by the documents referred to and/or annexed thereto). Indeed, the alleged offender must be able to verify whether, in the light of the relevant domestic law, the decision in question is likely to trigger the application of the principle ne bis in idem. (46) Accordingly, ex post exchanges of information may be useful to clarify the scope and meaning of the decision, or to complete the statement of reasons thereof, but cannot fundamentally alter its content.

At this stage, it may be useful to emphasise an important point. The above assessment cannot be interpreted as permitting the criminal authorities acting in a second set of proceedings to, in essence, review the correctness of the decisions adopted in a first set of proceedings. That would go against the principle of mutual trust, a principle which lies at the heart of the EU rules on the area of freedom, security and justice, and render the principle ne bis in idem largely ineffective. (47)

The authorities acting in a second set of proceedings are only entitled to check the (substantive and/or procedural) reasons for which the first prosecutor decided to discontinue proceedings. To that end, those authorities should be permitted to verify that the prosecutor has done so after reviewing a comprehensive body of evidence, and without failing to gather – because considered impossible, too difficult or simply unnecessary – additional evidence that was likely to be particularly relevant for the assessment.

For the rest, the findings made in the decision to discontinue proceedings adopted by the first prosecutor (for example, the probative value of the evidence assessed) should be taken at face value. The authorities acting in a second set of proceedings are precluded from undertaking a fresh assessment of the evidence already examined by the first prosecutor. (48) Mutual trust in the operation of the criminal systems of the Member States requires that national criminal authorities respect the findings made by other national authorities, whatever the verdict they reach. (49)

In that connection, perhaps a further point of clarification may be useful. The need to verify that a decision to discontinue proceedings involved an assessment of the merits of the case on the basis of a detailed investigation is a requirement that concerns, quite clearly, ‘simple’ decisions of discontinuance of the proceedings. That is, those decisions in which the proceedings are terminated and the person that was investigated – metaphorically speaking – ‘walks free’.

Indeed, under the law of all Member States there exists a number of alternative dispute resolution mechanisms that can lead to the discontinuance of the criminal proceedings in exchange for the presumed offender accepting the imposition of a mild(er) administrative penalty or alternative punitive measure. It is self-evident that this type of decisions of discontinuance of proceedings should normally be considered, for the purposes of the principle ne bis in idem, as equivalent to convictions. That is so regardless of whether they involve a formal finding of liability of the presumed offender. Since the case-law on this point is relatively clear, there is in my view no need to delve further in that respect. (50)

I shall now discuss the ‘idem’ condition.

As regards the ‘idem’ condition, the Court has ruled that the principle ne bis in idem, enshrined in Article 50 of the Charter, prohibits a duplication of proceedings and of penalties of a criminal nature ‘for the same acts and against the same person’. (51)

There are, accordingly, two elements which are relevant for this condition to be satisfied: identity of facts (idem factum) and identity of person (idem persona). The doubts expressed by the referring court appear to concern both of those elements, and I will thus attempt to bring more clarity in both respects.

(a) Idem factum

According to the Court’s settled case-law, the relevant criterion for the purposes of assessing the existence of the same offence

is identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together and which have resulted in the final acquittal or conviction of the person concerned. (52)

In that context, the term ‘identity’ should not be understood as absolute and complete coincidence of the facts that are relevant for the offence(s) the person is accused of. In fact, the Court has often referred to facts that are ‘in essence, the same’, (53) echoing the expression ‘substantially the same’ generally used by the ECtHR. (54) At the same time, however, the Court made clear that mere similarity of facts does not suffice: if ancillary factual elements may differ, (55) the central factual elements of the conduct alleged to constitute an offence must correspond. (56) For example, the simple fact that the alleged offender acted with the same criminal intention, in the context of a sequence of acts, does not suffice to infer that those acts form part of the same set of concrete circumstances inextricably linked together for the purposes of the principle ne bis in idem. (57)

On the other hand, the legal classification under national law of the facts is not relevant for the purposes of establishing the existence of the same offence, in so far as the scope of the protection conferred by Article 50 of the Charter cannot vary from one Member State to another. (58) As the Court explained in Van Esbroeck, given that there is no harmonisation of national criminal laws, a criterion based on the legal classification of the facts might create as many barriers to freedom of movement within the European Union as there are penal systems in the Member States. (59) In Zolotoukhine, the ECtHR also pointed out that a formalistic and restrictive approach, based on the legal characterisation of the two offences, would be too restrictive on the rights of the individuals, and thus risk undermining the guarantee which the principle ne bis in idem intends to establish. (60)

(b) Idem persona

The other element of the idem is the identity of the offender, that is, the person who is (or who is alleged to be) responsible for the offence(s) in question and, as a consequence, may be subject to criminal trial and punishment more than once.

The application of the principle ne bis in idem guaranteed in Article 50 of the Charter presupposes, therefore, that it is the same person who is the subject of the criminal proceedings or penalties at issue. As the Court has held, that principle does not apply to persons other than those whose trial has been finally disposed of in a Member State (61) and, as a consequence, cannot be infringed if it is not the same person who was tried and/or sanctioned more than once for the same unlawful act. (62)

In Mihalache, the ECtHR emphasised that a decision to discontinue proceedings by a public prosecutor is based on an assessment of the merits when it contains an assessment of both the factual elements of the crime and the person’s specific situation. This means that the decision in question should show that the prosecutor has evaluated the evidence in the case file, and assessed the alleged offender’s ‘involvement in one or all of the events prompting the intervention of the investigative bodies, for the purposes of determining whether “criminal” responsibility has been established’. (63) Similarly, the Court has stated that Article 50 of the Charter requires, to be applicable, that ‘the accused person’s criminal liability has been examined and that a determination in that regard has been made’. (64)

I understand that to mean that, in the criminal law decision in question, the criminal liability of that person must have been specifically examined and discarded on a substantive ground: for example, the person is not the perpetrator or, at any rate, cannot be held responsible for it.

Ideally, that should be expressly stated in the decision in question. Nevertheless, it cannot be ruled out that, if a prosecutor comes to the conclusion that the alleged facts do not give rise to any criminal offence, the decision to discontinue the proceedings does not formally identify the person invoking the protection of ne bis in idem with terms such as the ‘alleged offender’, ‘the suspect’, ‘the accused’ or ‘the person under investigation’. Moreover, on this same point, a formalistic interpretation of Article 50 of the Charter would risk being overly restrictive of the rights of individuals. In my view, a person should be entitled to invoke the protection of the principle ne bis in idem if it follows clearly and unquestionably from the text of the decision that his or her legal position as perpetrator, or person responsible for the conduct alleged to constitute an offence has been thoroughly evaluated.

As I emphasised in my preliminary remarks, it is in principle for the referring court to assess whether or not the conditions discussed above are satisfied in the case pending before it. Nevertheless, with a view to best assisting that court, I would now offer some brief considerations with regard to the possible application of the principle ne bis in idem to the main proceedings.

In the present case, it is common ground that both sets of proceedings taking place before the relevant Romanian courts are of a criminal nature. It is rather the satisfaction of the ‘bis’ and ‘idem’ conditions which is in dispute.

It seems to me that, as far as the ‘bis’ condition is concerned, the question relating to the finality of the order for dismissal of 27 September 2016 has been settled, following the order of the Judecătoria Slatina (Court of First Instance, Slatina) of 21 November 2016. (65) Indeed, if the findings of that court are correct, it would mean – if my understanding of national law is correct – that only extraordinary remedies exist against the abovementioned order. It follows that that order is, under Article 50 of the Charter, ‘final’ and thus capable, in principle, of triggering the principle ne bis in idem.

On the other hand, it appears far less clear whether the order for dismissal of 27 September 2016 contains an assessment of the merits that was based on a detailed investigation. To my mind, whether the information on that aspect is contained in the body of the prosecutor’s decision, or in a report annexed to it authored by the police, is immaterial, provided that the prosecutor clearly makes the police’s assessment his or her own, and national law permits such a course of action.

What really matters and what the referring court should, consequently, verify are the following elements: was that order mainly based on an assessment of the substantive elements of the alleged crime (for example, existence of the alleged facts, legal qualification thereof, criminal liability of the alleged offender, etc.), or on procedural grounds? If the former, were the findings of the prosecutor the result of an adequate investigation, as revealed by a thorough evaluation of a sufficiently comprehensive body of evidence, or was the order also motivated by considerations of judicial expediency, economy or policy?

Next, with regard to the ‘idem’ condition, I understand that – according to the referring court – the facts which have been examined in the two sets of proceedings are essentially the same. This means that the crimes alleged in the two different sets of proceedings, despite being formally different (extortion and passive corruption), should be considered as equivalent for the purposes of Article 50 of the Charter.

However, the parties in dispute appear to disagree on the idem persona element. I understand that the source of the disagreement lies in the fact that one set of proceedings was opened in rem, whereas the other set of proceedings was opened in personam.

I am obviously aware of the theoretical distinction between actions in rem and actions in personam. (66) It is, however, less clear to me what this implies in the context of Romanian criminal law proceedings. I understand that the distinction flows mainly from Article 305 of the Code of Criminal Procedure, according to which, inter alia, it is the existence of elements suggesting that a certain individual may have committed the offence that warranted the start of the criminal investigation that requires the prosecutor to order that the criminal investigation continue in relation to that individual, with the consequence that the latter acquires the status of suspect.

That being said, I am not sure that the specificities of domestic law should carry a significant weight in the context of the assessment that the referring court will be required to make when applying Article 50 of the Charter in the case at hand. Under that provision, as explained in point 95 above, it is not a question of labels but of substance. It is, thus, of little relevance whether the alleged offender was, in the first set of proceedings, formally given the status of ‘suspect’ or anything comparable. What is crucial is whether it is reasonably clear, on the basis of the text of the decision which closed those proceedings, that the legal position of that person as a possible perpetrator, potentially giving rise to a criminal offence, has been duly examined.

Having dealt with the various legal issues raised by the referring court, I would like to close this Opinion with some final considerations, in the hope that they may offer some guidance on the interpretation and application of Article 50 of the Charter.

The number of judgments given by both the Court of Justice and the ECtHR in the last few years suggests that the scope of the principle ne bis in idem is a perennial source of uncertainty. A variety of issues has arisen, in a multitude of cases, which led those courts to, depending on the circumstances, fine-tune, clarify but also, at times, significantly develop their case-law.

In my opinion, it is certainly to be welcomed that – some minor nuances aside – the Court and the ECtHR have followed similar lines of reasoning and produced a rather homogenous body of case-law. Overall, it seems to me that those courts strived to strike a fair balance between various competing interests. That is not an easy task, admittedly.

To explain why I am of this view, it may be helpful to take a step back in time. The principle ne bis in idem is a very old legal construct, traces of which have been found, inter alia, in the Code of Hammurabi, Demosthenes’s writings, the Digest of Justinian as well as numerous medieval canon laws. (67) In the (now) European Union – even in the absence of any provision to that effect – it was embraced as early as the mid-1960’s, and considered to be linked to the idea of natural justice. (68)

It would appear that, whereas the precise meaning and scope of the principle ne bis in idem have varied somewhat throughout the centuries, the understanding regarding its dual rationale has remained relatively consistent: equity and legal certainty. (69)

On the one hand, it is generally considered unfair and arbitrary that the State, ‘with all its resources and power [makes] repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity’. (70) The principle ne bis in idem is thus meant, in the first place, to prevent a situation whereby a person is put ‘in jeopardy’ more than once. (71)

On the other hand, the principle ne bis in idem is also inextricably linked to the principle res judicata: the idea that, in order to ensure both the stability of the law and legal relations, and the sound administration of justice, judicial decisions which have become definitive should no longer be called in question. (72)

In the EU legal system, the protection of the principle ne bis in idem finds a third rationale: ensuring free movement of persons within the Area of freedom, security and justice. The Court has emphasised, with reference to Article 54 of the CISA, that a person whose case has already been finally disposed of must be able to move freely without having to fear a fresh prosecution for the same acts in another Member State. (73)

Consequently, those objectives militate against an excessively restrictive interpretation of the principle ne bis in idem. At the same time, however, an excessively wide application of the principle would conflict with other public interests that deserve protection.

I am referring, in particular, to the general interest of society in effectively pursuing offenders, (74) and to the specific interest of the victims of crimes not only to obtain compensation from the offenders, but also to see that ‘justice is served’. (75) After all, the very name ‘Area of freedom, security and justice’ implies that freedom cannot come at the expense of security and justice. The latter concept must be intended, obviously, as justice for all individuals: alleged perpetrators but also alleged victims. That is why, pursuant to Article 3(2) TEU, within that area, free movement of persons must be ensured in conjunction with appropriate measures with respect to, inter alia, the prevention and combating of crime. (76)

In that regard, it cannot be ignored that a superficial approach to the application of the principle ne bis in idem could lead to some abuses and manipulation by offenders, who could resort to ‘forum shopping’ in order to ensure impunity for their actions. Indeed, when crimes are investigated by several prosecutors at the same time, there is a concrete risk that the least well-placed (or the most under-staffed or overworked) prosecution office might de facto prevent the carrying out of a serious investigation into that crime, since a decision to discontinue the proceedings from that office could pre-empt action from any other prosecution office.

In addition, on this side of the scale too there is an EU-related interest that deserve serious consideration: mutual trust. It follows from consistent case-law that mutual trust can be maintained and reinforced only if the authorities of a Member State can satisfy themselves that, in another Member State, there has been a proper

assessment of the criminal liability of a suspected offender. (77)

117.Thus, it is of the utmost importance that, when interpreting Article 50 of the Charter, a fair balance between those interests is found. In particular, an effective protection of individual rights should be reconciled with the legitimate interest of the Member States to avoid impunity for criminals. (78) That is the core idea that guided me in the present Opinion when, having reviewed and reflected on the case-law, I attempted to propose to the Court what I believe is a ‘balanced’ approach to the ‘bis’ and ‘idem’ conditions.

118.In particular, I do not see how a person whose involvement in an alleged offence was, during a first set of proceedings, closed at the investigation stage, not specifically examined and/or examined only on the basis of an inadequate and fragmentary body of evidence, could validly claim that a subsequent set of proceedings in which his or her involvement is distinctively examined, on the basis of a robust and comprehensive body of evidence, would put that person ‘in jeopardy’ twice and/or conflict with the principle res judicata.

119.In conclusion, I propose that the Court answer the question referred for a preliminary ruling by the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania) 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, only if, inter alia: (i) the decision is based on an assessment of the merits of the case, which is itself the result of a detailed investigation, consisting of a thorough evaluation of a sufficiently comprehensive body of evidence; and (ii) it follows from the text of the decision that the specific legal position of that person, as responsible for the facts alleged to constitute an offence, has been duly examined.

(1) Original language: English.

(2) See, for example, European Court of Human Right (‘ECtHR’), judgment of 8 July 2019, Mihalache v. Romania (CE:ECHR:2019:0708JUD005401210, § 47) (‘Mihalache’).

(3) OJ 2006 L 354, p. 56.

(4) OJ 2003 L 192, p. 54.

(5) As regards the concept of proceedings in rem, see infra, points 101 and 102 of this Opinion.

(6) The Commission refers to Articles 289 and 308 of the Cod penal (Romanian Criminal Code) which, in essence, concern, inter alia, acts of passive corruption committed by persons assimilated to civil servants, and to Articles 1, 5 and 6 of the Law No. 78/2000 for the prevention, discovery and sanctioning of corruption which concern, inter alia, acts of corruption committed by personnel exercising functions within legal persons.

(7) See, in particular, judgment of 18 May 2021, 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) (‘the judgment in AFJR’).

(8) Point 4 of the Annex to Decision 2006/928. See also recitals 3 and 6 thereof.

(9) See the judgment in AFJR, paragraph 214, and judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, paragraphs 189 and 191).

(10) Judgment of 6 March 2014 (C‑206/13).

(11) See, to that effect, judgment of 13 June 2019, Moro (C‑646/17, paragraphs 66 and 67 and the case-law cited).

(12) See, to that effect, judgment of 2 March 2023, Bursa Română de Mărfuri (C‑394/21, paragraph 60).

(13) See judgment of 14 July 2022, Volkswagen (C‑134/20, paragraph 33).

(14) See, similarly, Opinion of Advocate General Ruiz-Jarabo Colomer in Gözütok and Brügge (C‑187/01 and C‑385/01, points 36 and 37).

(15) 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, which was signed on 19 June 1990 and came into force on 26 March 1995 (OJ 2000 L 239, p. 19) (‘the CISA’). That provision reads: ‘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 …’

(16) See, inter alia, judgment of 5 June 2014, M (C‑398/12, paragraph 35) (‘the judgment in M’).

(17) See, inter alia, judgment of 22 March 2022, bpost (C‑117/20, paragraph 23).

(18) Ibid., paragraph 24 and the case-law cited.

(19) See, for example, judgment of 23 March 2023, Dual Prod (C‑412/21, paragraph 55 and the case-law cited). Emphasis added.

(20) See judgment of 22 December 2008, Turanský (C‑491/07, paragraphs 34 and 35).

(21) See judgment of 29 June 2016, Kossowski (C‑486/14, paragraph 35 and the case-law cited) (‘the judgment in Kossowski’).

(22) See the judgment in M, paragraph 32.

(23) I am using here the terms used in Mihalache, § 128.

(24) ECtHR, judgment of 10 February 2009, Zolotukhin v. Russia (CE:ECHR:2009:0210JUD001493903, § 108) (‘Zolotukhin’).

(25) European Treaty Series No 117. A non-binding document prepared by the Steering Committee for Human Rights and submitted to the Committee of the Ministers of the Council of Europe on 22 November 1984. See point 22 (emphasis added).

(26) See the judgment in M, paragraphs 39 and 41.

(27) Mihalache, §§ 102 to 116.

(28) Joint Concurring Opinion of Judges Raimondi, Nussberger, Sicilianos, Spano, Yudkivska, Motoc and Ravarani.

(29) See, to that effect, judgment of 16 December 2021, AB and Others (Revocation of an amnesty) (C‑203/20, paragraphs 56 and 57 and the case-law cited) (‘the judgment in AB and Others’). Note also that Article 4 of Protocol No 7 refers to ‘final acquittal or conviction’.

(30) See, to that effect, the judgment in M, paragraphs 28 and 29 and the case-law cited.

(31) Cf. Opinion of Advocate General Ruiz-Jarabo Colomer in van Straaten (C‑150/05)

EU:C:2006:381

point 65

See, inter alia, judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 54 to 69); of 10 March 2005, Miraglia (C‑469/03, EU:C:2005:156, paragraphs 31 to 34); of 22 December 2008, Turanský (C‑491/07, EU:C:2008:768, paragraphs 40 to 45); and the judgment in AB and Others, paragraph 61. See also ECtHR, decision of 15 March 2005, Horciag v. Romania (CE:ECHR:2005:0315DEC007098201).

Regarding proceedings being time-barred, I must admit that the judgment of 28 September 2006, Gasparini and Others (C‑467/04, EU:C:2006:610, paragraphs 22 to 33) appears to come to a different conclusion. However, I am of the view that, on that point, the judgment in Gasparini and Others cannot be reconciled with the subsequent case-law of the Court on acquittals on procedural grounds and, in any event, was implicitly overruled by the judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555) in which the Court regarded national rules on a statute of limitations as rules of a procedural nature. I would add that such a position is consistent with the case-law of the ECtHR: see, for example, decision of 5 December 2019, Smoković v. Croatia (CE:ECHR:2019:1112DEC005784912, paragraphs 43 to 45).

See the judgment in Kossowski, paragraphs 48, 53 and 54, and Mihalache, §§ 97 and 98.

See, inter alia, judgments of 12 May 2021, Bundesrepublik Deutschland (Interpol red notice) (C‑505/19, EU:C:2021:376, paragraph 73 and the case-law cited), and of 11 February 2003, Gözütok and Brügge (C‑187/01 and C‑385/01, EU:C:2003:87, paragraphs 27, 28 and 31). Similarly, ECtHR, Mihalache, §§ 94 and 95.

See, for example, the Concurring Opinion of Judge Pinto de Albuquerque in Mihalache, §§ 10 et seq.

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).

That principle is enshrined, inter alia, in Article 48(1) of the Charter.

See, to that effect, the judgment in Kossowski, paragraph 52.

See, in more detail, my Opinion in GR and Others (C‑726/21, EU:C:2023:240, points 35 to 53).

The judgment in Kossowski, paragraph 53.

Mihalache, § 98.

Ibid., § 97.

For example, Framework Decision 2009/948 (see footnote 37 above).

See, by analogy, judgment of 16 November 2010, Mantello (C‑261/09, EU:C:2010:683, paragraph 48).

See Opinion of Advocate General Bobek in bpost (C‑117/20, EU:C:2021:680, point 119).

See, similarly, Opinion of Advocate General Bot in Kossowski (C‑486/14, EU:C:2015:812, points 75 and 76).

See, to that effect, the judgment in M, paragraph 30.

See, inter alia, judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem) (C‑435/22 PPU, EU:C:2022:852, paragraphs 92 and 93 and the case-law cited). See also Opinion of Advocate General Ruiz-Jarabo Colomer in van Straaten (C‑150/05, EU:C:2006:381, points 52 and 63).

See especially judgment of 11 February 2003, Gözütok and Brügge (C‑187/01 and C‑385/01, EU:C:2003:87). See also Opinion of Advocate General Ruiz-Jarabo Colomer in Gözütok and Brügge (C‑187/01 and C‑385/01, EU:C:2002:516, points 83, 88, 89, 97 and 106), and Concurring Opinion of Judge Bošnjak, joined by Judge Serghides, in Mihalache.

(CE:ECHR:2016:1115JUD002413011, § 108 and the case-law cited).

(55) See, to that effect, judgment of 28 September 2006, van Straaten (C‑150/05, EU:C:2006:614, paragraph 49), and Opinion of Advocate General Sharpston in Kraaijenbrink (C‑367/05, EU:C:2006:760, points 49 to 52).

(56) See judgment of 22 March 2022, bpost (C‑117/20, EU:C:2022:202, paragraph 30). See also Opinion of Advocate General Bobek in bpost (C‑117/20, EU:C:2021:680, point 135). Similarly, ECtHR, 14 January 2010, Tsonyo Tsonev v. Bulgaria (No. 2), CE:ECHR:2010:0114JUD000237603, § 52.

(57) See, to that effect, judgment of 18 July 2007, Kraaijenbrink (C‑367/05, EU:C:2007:444, paragraph 29).

(58) See judgment of 22 March 2022, Nordzucker and Others (C‑151/20, EU:C:2022:203, paragraph 39 and the case-law cited).

(59) Judgment of 9 March 2006 (C‑436/04, EU:C:2006:165, paragraph 35).

(60) ECtHR, Zolotoukhine, §§ 78 to 84.

(61) See judgment of 28 September 2006, Gasparini and Others (C‑467/04, EU:C:2006:610, paragraph 37).

(62) See judgment of 5 April 2017, Orsi and Baldetti (C‑217/15 and C‑350/15, EU:C:2017:264, paragraphs 17 and 19, and the case-law cited).

(63) Mihalache, §§ 97 and 98.

(64) See, for example, the judgment in AB and Others, paragraph 57 (emphasis added).

(65) See above, points 15 to 17 of this Opinion.

(66) In extreme simplicity, actions in rem are concerned with a situation of fact, whereas actions in personam are directed against a person.

(67) Coffey, G., ‘A History of the Common Law Double Jeopardy Principle: From Classical Antiquity to Modern Era’, Athens Journal of Law, Vol 8, Issue 3, July 2022, pp. 253 to 278.

(68) See judgment of 5 May 1966, Gutmann v Commission (18/65 and 35/65, EU:C:1966:24) and, with further references to early case-law, View of Advocate General Jääskinen in Spasic (C‑129/14 PPU, EU:C:2014:739, point 43).

(69) See, Coffey, G., cited in footnote 67 above. Similarly, Opinion of Advocate General Ruiz-Jarabo Colomer in Gözütok and Brügge (C‑187/01 and C‑385/01, EU:C:2002:516, point 49).

(70) As stated by the U.S. Supreme Court in Green v. United States (1957) 355 US 184 at 187. See also Opinion of Advocate General Bot in Kossowski (C‑486/14, EU:C:2015:812, point 36).

(71) In that regard, see Opinion of Advocate General Sharpston in M (C‑398/12, EU:C:2014:65, point 48).

(72) As regards the concept of ‘res judicata’ see, among many, judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 38). On the relationship between the two concepts, see judgment of 22 March 2022, Nordzucker and Others (C‑151/20, EU:C:2022:203, paragraph 62 and the case-law cited).

(73) See judgment of 12 May 2021, Bundesrepublik Deutschland (Interpol red notice) (C‑505/19, EU:C:2021:376, paragraph 79 and the case-law cited).

(74) Similarly, Opinions of Advocate General Bobek in Bundesrepublik Deutschland (Interpol red notice) (C‑505/19, EU:C:2020:939, point 93), and in bpost (C‑117/20

EU:C:2021:680

point 121