Jean Leon Van Straaten v Staat der Nederlanden and Republiek Italië.

• Jurisdiction: European Union
• Celex Number: 62005CC0150
• ECLI: ECLI:EU:C:2006:381
• Docket Number: C-150/05
• Date: 08 June 2006
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

RUIZ‑JARABO COLOMER

delivered on 8 June 2006 (1)

Case C‑150/05

Jean Leon van Straaten

v

Staat der Nederlanden

and

Republiek Italië

(Reference for a preliminary ruling from the Rechtbank ’s‑Hertogenbosch, Netherlands)

(Reference for a preliminary ruling under Article 35 EU – Schengen acquis – Convention implementing the Schengen Agreement – Interpretation of Article 54 – Ne bis in idem principle – ‘The same acts’ – Transport of a consignment of narcotics from one Contracting Party to another and possession in the latter of part of that consignment – Concept of ‘trial disposed of’ – Acquittal on the grounds of insufficient evidence)

I – Introduction

1. This reference for a preliminary ruling under Article 35 EU, from the Rechtbank ’s‑Hertogenbosch (’s‑Hertogenbosch District Court), (2) affords the Court of Justice a fourth opportunity to interpret Article 54 of the Convention implementing the Schengen Agreement (hereinafter ‘the CISA’), which sets out the ne bis in idem principle.

2. On the first two occasions it held that the principle applies when the prosecution is discontinued on fulfilment of certain conditions agreed with the Public Prosecutor, (3) but does not, however, operate where a case is closed as the result of the Public Prosecutor’s Office itself deciding not to pursue the prosecution, on the ground that proceedings have commenced in another Member State against the same defendant and for the same acts. (4)

3. The third opportunity arose in Van Esbroeck, (5) which examined the temporal scope of the principle, and outlined the concept of ‘the same acts’.

4. The definition of the latter notion and the manner of determining the exercise of State power to combat criminal conduct come to the fore once again, since the referring court is unsure of the import of the expression ‘the same acts’ and seeks to know whether the trial of a person who has been acquitted on the grounds of insufficient evidence has ‘been disposed of’ within the meaning of Article 54 of the CISA. (6)

5. Those doubts arise in proceedings brought by Mr Van Straaten under Article 111(1) of the CISA, against the entry of his data in the Schengen Information System.

II – The Schengen acquis

A – General considerations

6. The body of law in question consists of:

a) the Agreement signed on 14 June 1985 in the Luxembourg town which gives it its name by the States comprising the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders; (7)

b) the Convention implementing that agreement, signed on 19 June 1990, (8) which establishes cooperation measures to counteract the effect of the elimination of those checks;

c) the accession protocols and instruments of the other Member States, the declarations and decisions of the Executive Committee created under the CISA, and those of the organs upon which that Committee has conferred decision-making powers. (9)

7. Protocol (No 2) to the Treaty on European Union and to the Treaty establishing the European Community integrated that acquis into the framework of the Union and, by virtue of the first subparagraph of Article 2(1), has applied to the 13 States set out in Article 1, which include the Kingdom of the Netherlands and the Italian Republic, (10) since the entry into force of the Treaty of Amsterdam (1 May 1999).

8. The aim, according to the preamble to the Protocol, is to enhance European integration and, in particular, to enable the European Union to develop more rapidly into an area of freedom, security and justice.

9. Pursuant to the second subparagraph of Article 2(1) of the Protocol, on 20 May 1999 the Council adopted Decisions 1999/435/EC and 1999/436/EC, in which it defined the Schengen Agreement and, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, determined the legal basis for the provisions which constitute the acquis. (11)

B – The ne bis in idem principle

10. Title III of the CISA, ‘Police and Security’, begins with a chapter on ‘Police Cooperation’ (Articles 39 to 47) and continues with another concerning ‘Judicial Assistance in Criminal Matters’ (Articles 48 to 53).

11. Chapter three, under the heading ‘Application of the ne bis in idem principle’ consists of Articles 54 to 58, which have their legal basis, according to Article 2 and Annex A of Decision 1999/436, in Articles 34 EU and 31 EU.

12. Article 54 of the CISA provides :

‘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.’

13. Article 55(1)(a) states that, when ratifying the Convention, a State can declare that it is not bound by Article 54 where the acts did not take place in the country where the judgment is delivered and took place, in full or in part, in its own territory.

C – Combating drug trafficking

14. After chapters four (‘Extradition’; Articles 59 to 66) and five (‘Transfer of the Enforcement of Criminal Judgments’; Articles 67 to 69), Title III devotes a further chapter to ‘Narcotic Drugs’ (Articles 70 to 76), Article 71(1) of which, having its legal basis not only in Articles 34 EU and 31 EU, but in Article 30 EU, states:

‘The Contracting Parties undertake as regards the direct or indirect sale of narcotic drugs and psychotropic substances of whatever type, including cannabis, and the possession of such products and substances for sale or export, to adopt in accordance with the existing United Nations Conventions, all necessary measures to prevent and punish the illicit trafficking in narcotic drugs and psychotropic substances.’

15. A final, seventh, chapter (Articles 77 to 91) concerns ‘Firearms and Ammunition’.

D – The Schengen Information System

16. Title IV of the Convention (Articles 92 to 119) establishes the Schengen Information System, (12) consisting of a national section in each of the signatory States and a technical support unit to enable access, by means of an automated search procedure, to alerts on persons and property for the purposes under Articles 95 to 100 (Article 92(1) in conjunction with Article 94(1) and Article 102(1)).

17. One of those objectives is arrest for extradition purposes, in which circumstances data on persons wanted is to be entered in the system at the request of the judicial authority of the requesting State (Article 95(1)), the only body authorised to modify, add to, correct or delete that data (Article 106(1)). Where the requested State considers that the alert is incompatible with its national law, international obligations or essential national interests, it may insert a flag prohibiting the arrest in its territory (Article 95(3) in conjunction with Article 94(4)).

18. Each country designates a competent authority to manage the national part of the system (Article 108(1)). Persons affected may bring an action to correct or delete an alert, to obtain information or to seek compensation (Article 111(1)), and the Contracting Parties undertake mutually to enforce any final decisions taken (Article 111(2)).

III – The facts, the main proceedings and the questions raised for a preliminary ruling (13)

19. In March 1983, Mr Van Straaten, a Community national, was in possession in Italy of approximately five kilograms of heroin, which he brought into the Netherlands, where he had around 1 000 grams at his disposal.

20. He was charged in the Netherlands with three offences: (1) on or about 26 March, importing 5 500 grams of heroin from Italy, together with Mr Yilmaz, (2) having a quantity of approximately 1 000 grams of heroin at his disposal during the period from 27 March to 30 March 1983 and (3) possessing firearms and ammunition.

21. The Rechtsbank ’s‑Hertogenbosch, in its judgment of 23 June 1983, acquitted him of the first charge on the grounds of insufficient evidence, (14) and sentenced him in respect of the other two to 20 months’ imprisonment, which he duly served, once the sentence had become final. (15)

22. In Italy, Mr Van Straaten was prosecuted for possessing and exporting to the Netherlands approximately five kilograms of heroin, in various consignments up to 27 March 1983, with the aggravating circumstance that he acted as a member of a criminal organisation. The trial was heard in his absence, although he had been duly summoned, and the Tribunale Ordinario di Milano (Court of First Instance, Milan), in a judgment of 22 November 1999, without ruling on the aggravating circumstance, imposed a prison sentence of 10 years and a fine of 50 million lira and ordered him to pay costs.

23. At the request of the Italian authorities, an alert in respect of Mr Van Straaten was entered in the Schengen Information System, for the purpose of his arrest and subsequent extradition, for which the Milan Public Prosecutor applied on 11 September 2001. Invoking Article 95(3) of the CISA, the Netherlands inserted a flag, preventing the detention from being carried out in its territory.

24. Once he learned of the second sentence and of his inclusion in the system, Mr Van Straaten, through the Korps Landelijke Politidiensten (16) (Netherlands National Police Services), sought the deletion of his data and, since he obtained no reply, immediately applied to the Rechtbank ’s‑Hertogenbosch. Under Article 106(1) of the CISA, on 16 July 2004, that court summoned the Italian Republic to appear.

25. The Rechtbank takes the view that, in accordance with Article 111 of the CISA, Mr Van Straaten has standing to bring the action and Italy is bound to accept the decision it delivers.

26. Mr Van Straaten argues that the sentence imposed...