In Mihalache v. Romania (8.7.2019) a Grand Chamber of the ECHR had to determine whether a public prosecutor’s order discontinuing criminal proceedings while imposing a fine on the applicant was a “final acquittal or conviction” triggering the application of the non bis in idem principle as laid down in Article 4 of Protocol No 7 to the Convention. In answering that question in the affirmative, the ECHR relied on a series of criteria (determination as to the merits, availability of ordinary remedies, expiry of the time-limit within which those remedies are to be used) which in substance coincide with those relied on by the CJEU in similar cases such as Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg (C-486/14). Only when a penalty has been imposed does EU law depart from Article 4 of Protocol No 7 in that Article 54 of the Convention implementing the Schengen Agreement requires, as a condition for the application of the non bis in idem principle, that the penalty has been enforced, is in the process of being enforced or can no longer be enforced under the laws of the sentencing Member State (see Spasic, C-129/14).
In Melvin West v. Hungary (decision, 25.6.2019) the ECHR confirms that Article 6 of the Convention does not apply to the procedure for the execution of a European Arrest warrant but that, by virtue of Article 5 § 1 f) of the Convention, any detention with a view to transferring the person concerned to the issuing Member State has to be in compliance with the relevant domestic and European Union law, which it is primarily for the national authorities to interpret. Moreover, Article 5 prohibits any transfer of a person to a country where he or she would be exposed to a real risk of a flagrant breach of this provision. Finally, the ECHR reiterates that there is no basis under Article 8 of the Convention for a convicted person to avoid having to serve a prison sentence in a foreign country.
In Romeo Castaño v. Belgium (9.7.2019) the ECHR confirms the applicability of Article 3 of the Convention to the execution by EU Member States of a European Arrest Warrant but extends its scrutiny to Article 2 of the Convention in cases where a European Arrest Warrant has been issued with a view to enabling criminal proceedings for homicide in the issuing State to go ahead. In such cases, Article 2 imposes on the executing State an obligation to cooperate with the issuing State in facilitating those criminal proceedings, notably by transferring the person who is the subject of the European Arrest Warrant, without however ignoring the limits to such a transfer flowing from Article 3 of the Convention. Any refusal of a transfer on this ground should therefore be duly reasoned by reference to updated and individualised information.
In Nodet v. France (6.6.2019) the ECHR applies the non bis in idem principle according to its recent A. & B. v. Norway jurisprudence (24130/11 and 29758/11, 15.11.2016), which is in some contrast with the Menci jurisprudence of the CJEU (C-524/15, 20.3.2018), also mentioned in the Nodet judgment (at § 31).
In Repcevirag Szövetkezet v. Hungary (30.4.2019) the ECHR examines whether the Kúria breached Article 6 of the Convention by refusing to request a preliminary ruling by the CJEU in proceedings relating to an action in tort against Hungary for infringement of European Union law (Köbler case-law).
In Harisch v. Germany (11.4.2019) the ECHR assesses compliance with Article 6 of the Convention of the failure by the Federal Court of Justice (BGH), in the context of its examination of a refusal of leave to appeal, to give reasons for its refusal to request a preliminary ruling from the CJEU (Art. 267 TFEU).