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CJEU clarification in relation to the scope of the Ne Bis in Idem principle in third-country sentences. The CJEU gave its judgment[1] in relation to the interpretation of article 4(5) of the Framework Decision on the European Arrest Warrant (FD EAW).

According to the CJEU the executing judicial authority may only refuse the execution of an EAW in one of the exhaustively listed cases of mandatory non-execution, as laid down in Article 3 EAW FD or of the optional non-execution, as laid down in Article 4 and 4a EAW FD.


Article 3 EAW FD provides mandatory grounds upon which the executing state’s court must refuse to execute an EAW. One of the mandatory refusal grounds in Article 3 EAW FD is the Ne bis in idem pursuant to Article 54 Convention Implementing the Schengen Agreement (CISA)[2]. According to Article 3(2) EAW FD and 54 CISA in order to refuse execution based on this ground the authorities in the relevant Member State must verify that the case relates to the same client, for the same offence, that a final decision has been made in the EU Member State and “execution condition” has been fulfilled if the client has been convicted.


In relation to the “same acts” contained in article 3(2) EAW FD the CJEU has established that the term is an autonomous EU definition and the concept is based on the factual approach (idem crimen) which “has been interpreted as referring only to the nature of the acts, encompassing a set of concrete circumstances which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected: Case C-261/09 Gaetano Mantello, Grand Chamber (16th November 2010)[3], citing Van Esboreck and Van Straaten. The CJEU also confirmed that the question of whether the case has been ‘finally judged” is to be determined by the laws of the Member State in which the judgment was delivered.[4]


 One of the optional refusal grounds is that of Article 4(5) – Ne bis in idem in non-EU (“third”), which constitutes a ground of refusal where prior prosecution for the same acts has taken place in a third state/country.


In its recent Judgment in the Case C-665/20 PPU, X (Mandat d’arrêt européen – Ne bis in idem), the CJEU clarified the meaning and interpretation of Article 4(5) EAW FD in circumstances where the Member States choose to transpose the provision into national law. The case concerned the optional refusal ground as laid down in Article 4(5) EAW FD where X was sought under EAW from Germany for various offences, and after he was arrested in the Netherlands, he claimed that he has been prosecuted in Iran. X has been prosecuted in Iran for the same offences and he was irrevocably convicted for some of the charges and acquitted for others. He served most of his sentence but the remainder he has been remitted as part of a general pardon. The Amsterdam Court has doubts as to whether these circumstances are covered under the provision of Article 4(5) EAW FD as a refusal ground.


The CJEU held that article 4(5) EAW FD provides that the executing court must have a margin of discretion when it applies the refusal ground of article 4(5) FD EAW. By comparing the two provisions the court drew a distinction between article 3(2) which provides for EU recognition such as to bar extradition/prosecution for member states and article 4(5) which relates to third counties where the presumption of mutual trust does not arise.


Further, the CJEU held that the concept of “same acts” contained in both provisions must be interpreted uniformly confirming that the wording in article 4(5) has the same substantive meaning and shares the same objective with the mandatory provisions on the basis of the “same acts”. The CJEU clarified that the principle of the same acts contained in article 4(5), be interpreted in the same way as those in article 3(2) FD EAW. Therefore, the concept refers to the nature of the acts, encompassing a set of concrete circumstances that are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected.






[4] Case C-261/09 Gaetano Mantello, Grand Chamber (16th November 2010)


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