Cauza Zoran Spasic
The Case of Zoran Spasic

Summary/Abstract: The case of Zoran Spasic brings to the Court of Justice of the European Union (CJEU) attention, once again, the principle of ne bis in idem. The CJEU has ruled over the compatibility of the Article 54 of the Convention Implementing the Schengen Agreement (CISA) and the provision of the Charter of Fundamental Rights of the European Union (EU Charter) and the meaning of the enforced sentence.The provisions of the Article 54 of the CISA limit the operability of the principle ne bis in idem to the cases where the enforcement condition has been met. The enforcement condition requires that the penalty imposed “has been enforced”, “is in the process of being enforced” or “can no longer be enforce”, such a requirement is not stipulated by the Article 50 of the EU Charter. In these conditions, the CJEU has been questioned about the compatibility of the Article 54 of the CISA with the provisionsof the EU Charter, and, if so, when a custodial sentence and a fine are imposed as principal penalties, the payment of the fine is sufficient to consider the enforcement condition fulfilled.The Court of Justice held that, even if the enforcement condition constitutes a limitation of the ne bis in idem principle, it is compatible with the EU Charter, the Article 52 of the EU Charter provides the situation in which the rights deriving from the Article 50 of the EU Charter regarding the principle may be restricted. In terms of the second question, the Court held that when a fine and a custodial sentence are imposed as principal penalties, the payment of the fine alone does not satisfy the enforcement condition within the meaning of the CISA.The direct effect of the ruling in the case of Zoran Spasic is that the German authorities can proceed to prosecute again Mrs. Spasic for the offences committed in 2009 for which he has not served the sentence pronounce by the Tribunale ordinario di Milano.As an effect of the Court decision, the enforcement condition provided by the Article 54 of the CISA from now on will be apply to all situations in which the ne bis in idem principle is referred to in a criminal proceeding at a court in the territory of an European Union Member, even if the state is not a member of the Schengen area.By ruling so, the Court has limited the possibility of a person to avoid a custodial sentence by moving jurisdiction in another state.In Romanian criminal law, the enforcement condition has been provided by the Law No. 302/2004 regarding the international judicial cooperation in criminal matters which contains some of the provisions of the CISA including the Article 54.

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