Although the Court of Justice of the European Union had already established the importance of the ne bis in idem principle in a number of areas of European Union Law (EU Law), the Mantello ruling of November 16, 2010 (C-261/09) is the first where the Court clarified the nature of the stated principle under the Framework Decision 2002/584 on the European Arrest Warrant (Framework Decision).
In 2008 an Italian Court (the issuing Court) issued a European Arrest Warrant in respect of Mr Mantello on the basis of two alleged acts, namely, unlawful possession of drugs and illegal transport and trafficking of the latter in Italy and Germany. The German authorities arrested Mr Mantelo and brought him before a German Court, which decided to suspend both the execution of the warrant and the pursuit of further prosecution of the defendant. It appeared that in 2005, the latter had already been convicted by the issuing Court on the charge of acts similar to those alleged in the warrant. With regard to the ne bis in idem principle, German Law provides that further prosecution of a convicted person is possible in the presence of proof of criminal acts different from those the stated person had already been convicted for. In an attempt to avoid a double conviction of Mr Mantello, the German Court requested that the issuing Court specify whether the prior conviction of the defendant precluded both the execution of the arrest warrant and the pursuit of further judicial proceedings in Germany. The response was negative. Nevertheless, there was a persistent doubt on the respect of the ne bis in idem principle, as provided for by German Law. Therefore, the German Court ultimately decided to refer two questions for preliminary ruling to the European Court of Justice (ECJ). First, the referring Court asked if the expression «same acts» under Article 3 of the Framework Decision should be interpreted by reference to the Law of either the issuing or executing Member State, or by reference to EU Law. Secondly, it requested if the proceedings before the issuing Court definitively preclude the execution of the warrant by the authorities of the executing Member State.
In its response to the first question, the ECJ firmly established that the expression « same acts » under Article 3 of the Framework Decision is autonomous and must, as such, be interpreted in the light of EU Law only. The Court emphasized that the goal of the Framework Decision is to create an extradition system of surrender, based on mutual recognition and efficient execution of the warrants issued amongst the Member States. While recognizing the autonomy of the expression «same acts», the Court stated that the identity of the alleged acts should be evaluated in the light of the specific circumstances of each case.
With regard to the second question, the Court stated that the execution of the warrant as well as the pursuit of further proceedings before the referring Court can only be precluded if, by virtue of Italian Law, Mr Mantello’s prior conviction in Italy is qualified as a « final judgement ». On this point, the issuing Court had already confirmed that the stated conviction was not a final judgement and did neither bar the execution of the arrest warrant in Germany, nor did it preclude the pursuit of further proceedings before the German jurisdictions.
Reproduction autorisée avec l’indication: Grozdanovski Ljupcho, "An autonomous interpretation of the concept of 'same acts' in the European Arrest Warrant", www.ceje.ch, actualité du 1er décembre 2010.