'Ne bis in idem' principle can preclude the arrest, within the Schengen Area and the European Union, of a person who is the subject of an Interpol notice (ECJ)
In 2012,
the International Criminal Police Organisation (Interpol) published, at the
request of the United States and on the basis of an arrest warrant issued by
the authorities of that country, a red notice in respect of WS, a German
national, with a view to his potential extradition. Where a person who is the subject
of such a notice is located in a State affiliated to Interpol, that State must,
in principle, provisionally arrest that person or monitor or restrict his or
her movements.
However,
even before that red notice was published, a procedure investigating WS, which
related, according to the referring court, to the same acts as those which
formed the basis for that notice, had been carried out in Germany. That
procedure was definitively discontinued in 2010 after a sum of money had been
paid by WS as part of a specific settlement procedure provided for under German
criminal law. The Bundeskriminalamt (Federal Criminal Police Office, Germany)
subsequently informed Interpol that, in its view, as a result of that earlier
procedure, the ne bis in idem principle was applicable in the present case.
That
principle, which is enshrined in both Article 54 of the Convention implementing
the Schengen Agreement[1]
and Article 50 of the Charter of Fundamental Rights of the European Union (‘the
Charter’), prohibits, inter alia, a person whose trial has been finally
disposed of from being prosecuted again for the same offence. In 2017, WS
brought an action against Germany before the Verwaltungsgericht Wiesbaden
(Administrative Court, Wiesbaden, Germany) seeking an order requiring that
Member State to take the measures necessary to arrange for that red notice to
be withdrawn.
In that
regard, WS relies not only on an infringement of the ne bis in idem principle,
but also on an infringement of his right to freedom of movement, as guaranteed
under Article 21 TFEU, since he cannot travel to any State that is a party to
the Schengen Agreement or to any Member State without risking arrest. He also
argues that, due to those infringements, the processing of his personal data
appearing in the red notice is contrary to Directive 2016/680, which concerns
the protection of personal data in criminal matters. [2]
That is the
context in which the Verwaltungsgericht Wiesbaden decided to ask the Court
about how the ne bis in idem principle is to be applied and, specifically,
whether it is possible provisionally to arrest a person who is the subject of a
red notice in a situation such as the one at issue. Furthermore, in the event
that that principle does apply, that court wishes to know what the consequences
are for the processing, by Member States, of the personal data contained in
such a notice.
In its
Grand Chamber judgment, the Court finds that Article 54 of the CISA and Article
21(1) TFEU, read in the light of Article 50 of the Charter, must be interpreted
as not precluding the provisional arrest, by the authorities of a State that is
a party to the Schengen Agreement or by those of a Member State, of a person in
respect of whom Interpol has published a red notice, at the request of a third State,
unless it is established, in a final judicial decision taken in a State that is
a party to that agreement or in a Member State, that the trial of that person
in respect of the same acts as those on which that red notice is based has
already been finally disposed of by a State that is a party to that agreement
or by a Member State respectively.
The Court
also finds that the provisions of Directive 2016/680, read in the light of
Article 54 of the CISA and Article 50 of the Charter, must be interpreted as
not precluding the processing of personal data appearing in a red notice issued
by Interpol in the case where it has not been established, by means of such a
judicial decision, that the ne bis in idem principle applies in respect of the
acts on which that notice is based, provided that such processing satisfies the
conditions laid down by that directive.
Assessment
of the Court
As a
preliminary point, the Court notes that the ne bis in idem principle may apply
in a situation such as the one at issue in the present case, namely where a
decision has been adopted which definitively discontinues criminal proceedings
provided that the person concerned meets certain conditions, such as the
payment of a sum of money set by the public prosecutor. After having noted the
foregoing, the Court rules, in the first place, that Article 54 of the CISA,
Article 50 of the Charter and Article 21(1) TFEU do not preclude the
provisional arrest of a person who is the subject of an Interpol red notice
where it has not been established that that person’s trial has been finally
disposed of by a State that is a party to the Schengen Agreement or by a Member
State in respect of the same acts as those forming the basis of the red notice
and that, consequently, the ne bis in idem principle applies.
In that
regard, the Court notes that, where the application of the ne bis in idem
principle remains uncertain, provisional arrest may be an essential step in
order to carry out the necessary checks while avoiding the risk that the person
concerned may abscond. That measure is therefore justified by the legitimate
objective of preventing the impunity of the person concerned. By contrast, as
soon as it has been established by a final judicial decision that the ne bis in
idem principle applies, both the mutual trust between the States that are
parties to the Schengen Agreement and the right to freedom of movement prohibit
that person from being provisionally arrested or from being kept in custody.
The Court
points out that it is for the States that are parties to the Schengen Agreement
and for Member States to ensure the availability of legal remedies enabling the
persons concerned to obtain such a decision. It also finds that, where
provisional arrest is incompatible with EU law, because the ne bis in idem
principle is applicable, a State affiliated to Interpol which refrains from
making such an arrest would therefore not fail to fulfil its obligations as an
affiliate of that organisation.
In the
second place, as regards the matter of personal data appearing in an Interpol
red notice, the Court notes that any operation performed on those data, such as
registering them in a Member State’s list of wanted persons, constitutes
‘processing’ which falls under Directive 2016/680.[3]
Additionally, the Court finds, first, that that processing pursues a legitimate
objective and, second, that it cannot be regarded as unlawful solely on the
ground that the ne bis in idem principle may apply to the acts on which that
red notice is based.[4]
That processing, by the authorities of the Member States, may indeed be
indispensable precisely in order to determine whether that principle applies.
In those
circumstances, the Court also finds that Directive 2016/680, read in the light
of Article 54 of the CISA and Article 50 of the Charter, does not preclude the
processing of personal data appearing in a red notice where no final judicial
decision has established that the ne bis in idem principle applies in the
relevant case. However, such processing must be carried out in compliance with
the conditions laid down by that directive. In that respect, it must, inter
alia, be necessary for the performance of a task carried out by a competent
national authority for purposes of the prevention, investigation, detection or
prosecution of criminal offences or the execution of criminal penalties.[5]
By
contrast, where the ne bis in idem principle does apply, the recording, in the
Member States’ lists of wanted persons, of the personal data contained in an
Interpol red notice is no longer necessary, because the person concerned can no
longer be the subject of criminal proceedings in respect of the acts covered by
that notice and, consequently, cannot be arrested for those same acts. It
follows that the data subject must be able to request that his or her data be
erased. If, nevertheless, those data remain recorded, they must be accompanied
by a note to the effect that the person in question can no longer be prosecuted
in a Member State or in a State that is a party to the Schengen Agreement for the
same acts by reason of the ne bis in idem principle. (curia.europa.eu / photo:
pixabay.com)
The full text of the judgment is available here
[1] 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, signed in Schengen
(Luxembourg) on 19 June 1990 and which entered into force on 26 March 1995 (OJ
2000 L 239, p. 19; ‘the CISA’)
[2] Directive (EU) 2016/680 of
the European Parliament and of the Council of 27 April 2016 on the protection
of natural persons with regard to the processing of personal data by competent
authorities for the purposes of the prevention, investigation, detection or
prosecution of criminal offences or the execution of criminal penalties, and on
the free movement of such data, and repealing Council Framework Decision
2008/977/JHA (OJ 2016 L 119, p. 89).
[3] See Article 2(1) and Article
3(2) of Directive 2016/680
[4] See Article 4(1)(b) and
Article 8(1) of Directive 2016/680
[5] See Article1(1) and Article
8(1) of Directive 2016/680.
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