Title: European arrest warrant, ne bis in idem and refusal of execution: it is the duty of the judicial authority, who has issued the warrant, to state that, in relation to the ‘same facts’, there is no ‘final decision’ (Court of Justice, decision 16.11.2010, C-261/09, Mantello)

Date: 03/08/2011

Subject: The judicial authority of the Member State of execution is called to verify if the requested person has been finally judged on same acts by a Member State of the European Union. The concept of ‘same acts’ in Article 3(2) of the Framework Decision should not be left to the discretion of the judicial authorities of the Member States on the basis of their national law; that concept should be regarded as an autonomous concept of European Union law. The fact that the issuing judicial authority has renounced to charge and prosecute the requested person in respect of the offences referred to in the arrest warrant, at the time of the investigation which led to the conviction, although the investigators had sufficient evidence, does not allow to consider the earlier judgment as a final judgment covering the acts referred to in the arrest warrant issued by itself. It does not preclude the criminal proceedings referred to in that arrest warrant. The executing judicial authority therefore has no reason to apply, in connection with such a judgment, the ground for mandatory non-execution provided for in Article 3(2) of the Framework Decision.

Original language: Italian

Classification: Justice - Art. 47 Fair trial, public hearing - Art. 50 Right not to be tried or punished twice in criminal proceedings for the same criminal offence

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