On 12 May 2021, the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) handed down judgment in the case of WS v Bundesrepublik Case C-505/19. The Court was required to interpret the application of the principle of ne bis in idem, or double jeopardy, as contained in Article 54 of the Convention implementing the Schengen Agreement and Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and which prohibits, inter alia, a person whose trial has been finally disposed of from being prosecuted again for the same offence. The Court’s decision, which aligns with the opinion of Advocate General Bobek published in November 2020, confirmed that where the principle of ne bis in idem has been found to apply in one Schengen signatory or Member State, it will operate to prevent the arrest of an individual across the entire Schengen area.
Background to the decision
WS, a German citizen and businessman, was the subject of a criminal investigation in Germany in connection with allegations of bribery. In 2009, those criminal proceedings were brought to a close by German prosecutors after WS paid a fine. In 2012, the US obtained a Red Notice for WS alleging criminal charges arising out of the same facts as the German proceedings. WS argued that the Red Notice was in breach of EU law in that it offended against the principle of ne bis in idem and amounted to an unlawful interference with his right to free movement. He further argued that the continued processing of the data contained in the Red Notice by Member States was in breach of the EU Law Enforcement Directive.
The decision of the court
As a preliminary matter, the Court noted that the principle of ne bis in idem is capable of applying to a situation in which a decision to finally discontinue criminal proceedings against an individual subject to conditions, such as the payment of a fine, had been taken. The Court held that, once it has been established by a judicial authority in one Member State that the principle applies to an individual’s case, then the principles of mutual trust and freedom of movement that apply to Schengen signatories are engaged so as to render the individual’s arrest incompatible with EU Law. Where the arrest was sought pursuant to an INTERPOL Red Notice, the Court confirmed that a refusal (by a State which is a member of INTERPOL) to affect the arrest would not amount to failure by that State to fulfil its obligations to INTERPOL.
As to the lawfulness of the processing, by the authorities of the Member States, of WS’s personal data in the Red Notice, the Court held that such processing would not be rendered unlawful solely on the basis that the principle of ne bis in idem applied. In fact, such processing may be necessary for the very purpose of determining whether an individual is to be afforded the protection of ne bis in idem. However, where the principle is determined to apply, ongoing processing by the relevant authorities in the Member State (for example, in the Member States’ list of wanted persons) can no longer be said to be necessary for the investigation, detection or prosecution of criminal offences and therefore the individual must be allowed to request that the relevant authorities in the Member State erase the personal data relating to him or her without delay. Any personal data which remains recorded by those authorities must be accompanied by a note to the effect that the person in question may no longer be prosecuted in a Member State or a State which is a Schengen signatory.
Provisional arrest in Schengen vs the UK
The Court’s decision provides clarity for States with conflicting obligations under both Schengen and to INTERPOL as to the status of Red Notices issued in respect of matters finally determined by another Member State. The right to freedom of movement and the principle of mutual trust underpinning the Schengen agreement were held to be sufficiently strong to displace a Member State’s obligations to INTERPOL. Many will view the decision favourably, in particular, as it provides a further line of defence for individuals against potential INTERPOL abuse. The perils of the Red Notice system and its potential for abuse by States with a questionable commitment to the rule of law are well known.
Notably, the decision confirms the UK’s position as an outlier in these circumstances. In anticipation of its exit from the EU, the UK passed the Extradition (Provisional Arrest) Act 2020, which provides law enforcement with a new warrantless power of arrest for extradition purposes. One basis for arrest under the 2020 Act is a Red Notice issued by a select list of “trusted nations”. At present that list includes the UK’s ‘Five Eyes’ partners (Australia, Canada, New Zealand and the United States) plus Liechtenstein, Switzerland, Norway and Iceland. The 2020 Act has been criticised for the stark lack of safeguards in place for ensuring only those States with a commitment to the rule of law are added to the list. As it stands, the US’ inclusion means that a person in a similar position to WS, facing provisional arrest under an INTERPOL Red Notice for an offence to which the principle of ne bis in idem applied, would be protected from such arrest across the entirety of the Schengen area but not in the UK. When read alongside this decision, the 2020 Act appears to place the UK in an unenviable position whereby it places more trust in INTERPOL Red Notices than in the judicial decisions of EU Member States.