Orzeczenie: Zoran Spasic
Komentarz autorstwa Piotra Słowińskiego do wyroku TSUE ws. Zorana Spasica, w którym Trybunał zbadał zgodność Konwencji wykonawczej do Układu z Schengen między rządami państw Unii Gospodarczej Beneluksu, Republiki Federalnej Niemiec oraz Republiki Francuskiej w sprawie stopniowego znoszenia kontroli na wspólnych granicach z Kartą Praw Podstawowych UE.
Comment on a case C 129/14 PPU Criminal proceeding against Zoran Spasic
The Court decided about a compatibility between Article 50 of the Charter of Fundamental Rights of the European Union with Article 54 of the Convention Implementing the Schengen Agreement in limiting the ne bis in idem principle to a certain condition and the Court is to rule if enforcing only one of two parts of the punishment is enough to consider it enforced as a whole. As far as I am concerned, the Courts’ decision is correct.
First of all, we must investigate whether such limitation of the ne bis in idem principle is possible. The main point of discussion is whether such restriction under this specific condition has the legal basis. In the face of Article 52 of the Charter such constraint is allowed, if it is „[…] provided for by law and respect the essence of those rights and freedoms”. However, in this particular case the main problem is whether CISA regulation genuinely violates the essence of the ne bis in idem principle. Its purpose is to protect the offendant from being convicted of the very same crime in another country, which is also part to the CISA.
Considering it as a whole, it is obvious to be observed that the Article 54 of the CISA does not affect or disturb the essence of this principle. As a matter of fact it should not be considered as a violation, but as a proportional way to ensure the implementation of the Article 54 of the CISA and as a guarantee that a crime will not avoid the punishment. Although the Courts’ argumentation might be found a little bit chaotic in answering the first question, but as long as deepening and going further, it is able to find the way of Courts’ inference. Answering this question posed, both difficulties and easiness. The latter one – it concerned very few Articles tightly corresponding with each other, whose interpretation does not seem hard. It also does not require specialist knowledge of the EU law to understand the legal basis of the judgment. What was hard, was the fact which has been already mentioned before – chaos and visible irrelevance due to the hierarchy as well as chronology of arguments.
As far as I am concerned, I do have an impression that the final conclusion „came out of nowhere”. As a consequence, it might be observed how difficult is to answer rather a simple question, which with reference to this case, demanded a lot of analysis and discussing. As a whole Courts’ argumentation and final resolving of the problem seems convincing and well justified. Therefore, I cannot find a way to cover this issue in a simpler way, which would be as convincing as the one proposed by the Court. The point which seems intelligible is the reasoning that questioned Article is not de facto a violation but a protection of human rights, in this specific case the right not to be convicted again for the same crime. Mr Spasic might wrong himself in questioning this provision. It has been implemented to PROTECT not to LIMIT rights. The whole essence of the provision was mistakenly understood, which cannot be justified by the complexity of the Article 54, because it is, in my opinion, well formulated, clear and gives no space or ambiguity for any further interpretation. Still the way how it was understood by Mr Spasic has led to the second question asked to the Court.
Secondly, the Court had to rule out if serving one part of the punishment, which consists of two independent punishments is enough to consider it to be enforced and served fully. At first we have to literally understand the meaning of the Article 54 of the CISA. It says ‘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‘. Key words to answer presented question are ‘if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced’. These words define the conditions under which person shall not be prosecuted in another country, being a member of the Schengen agreement. In face of this case to justify the judgment we are to understand whether any of these conditions has been fulfilled.
Penalty has been adjudicated to Mr Spasic by the Tribunale ordinario di Milano for his fraud crime. Undoubtedly, it could be enough to say that it falls within one of the provisions’ condition, to be exact ‘if a penalty has been imposed’. Nevertheless, we do know that the penalty consisted of two independent punishments, which one of them was a fine and the other one was a custodial. Mr Spasic paid a fine, though the custodial punishment was not executed. Way to consider any of the conditions in provision mentioned above is to settle what does it mean for the penalty to have been imposed, enforced or to be in a process of being enforced. In my opinion, which matches with the Courts’ opinion delivered in this judgment, that although the Article 54 mentions a penalty (singular) in some cases, a penalty has to be considered as a whole, even if it consists of two independent punishments. There is no way to demarcate these two penalties when they have been passed for the same crime. Doing so is to cause the implementation of Article 54 of the CISA useless and it would mean that it cannot serve its purpose.
I therefore believe in clearness, that to call the penalty served or enforced, it has to be served COMPLETELY. When it comes to judge what might be called a ‘process of [penalty] being enforced’ what is the judgment of the Polish Supreme Court from 2nd June 2006 signature: IV KO 22/05. In this judgment there was concerned how to qualify the suspension of executing imprisonment penalty with the Article 54 and how it is corresponding with it. The Supreme Court ruled out that this suspension may be considered as a ‘process of [penalty] being enforced’ in face of domestic law. From my point of view, it is positive description and example for other Member Countries of the UE how to understand this exact phrase.
What these two cases (Mr Spasic and the Polish Supreme Court case mentioned above) show, is the significance of literal interpretation of the EU law. Moreover, it shows that its aim is to protect rights that are guaranteed by the Charter of Fundamental Rights of the European Union. Although some of the rulings may not be comprehensible to an average citizen of the EU and even in some cases to qualified lawyers, it is vital to see them as a part of long and sometimes hard way to establish high standard of human rights in the EU. If it were not such cases and other more significant ones, the law would be hardly understandable in its written form. The Case of Mr Spasic depicts not only the way the Court of Justice of the European Union understands ne bis in idem principle but also the importance of knowing and being familiar with your own tenable laws.
There is an old Roman principle ignorantia iuris nocet, which has to be kept in mind. If people do not care to read the provisions that are transparent and uncomplicated to understand, then they cannot rely on such regulations. According to this case, speaking for myself, Mr Spasic tries to undermine the domestic Courts’ judgment, which absolutely was an inept attempt to question the Article that seems to be clear, either leaves no space or a law gap for interpretation further than it is required. As French civilist Marcel Planiol said ‘Law does not protect naivety nor foolishness’. These words apply to me and even are more convincing proof to justify Court of Justice judgment, although it cannot be used in court. In my opinion this inept and naive attempt to decline responsibility for his crime and to escape from it. In his meaning cleverly was not as big waste of time as it may seem at first. Hopefully, it will deter other citizens who could think that they are smarter than the experienced judges. The only disadvantage of this judgment is the fact how unapproachable it might be for an average citizen in its form and argumentation. Especially concerning the conclusion, there cannot be any objections.
Piotr Słowiński
