Enforcement or no Enforcement?

Inhaltsverzeichnis (Table of Contents)

• Introduction and background
• Introduction
• The origin of the sources of the ne bis in idem principle in the European Union
• Ne bis in idem-analysis and comparison of the relevant articles
• The case of Boere
• Facts of the case
• Judgment and reasoning
• Criticism of the judgment
• Is an enforcement requirement mandatory?
• Status of Schengen Law
• Status of the Charter
• Hierarchy between Article 54 CISA and Article 50 EuCFR
• The compatibility of Article 54 CISA with EU Law
• Incompatibility of Art 54 CISA with Article 50 EuCFR
• The influence of general principles
• Ne bis in idem as a general principle
• The fundamental rights as enshrined in the ECHR as general principles
• Scope of the ne bis in idem general principle regarding enforcement
• Interim conclusion
• Justification of the enforcement requirement
• Justification on the basis of Article 52 (1) EuCFR
• The impact of mutual recognition
• Influence of Free Movement Rights
• Interim conclusion
• Proportionality
• The impact of mutual recognition
• Influence of Free Movement Rights
• Interim conclusion
• Justification using Article 54 CISA as a concretization of Article 50 EuCFR
• Interim conclusion
• The implication of this outcome for European Union Law
• Consequences for Article 54 CISA
• Consequences for the European Arrest Warrant
• Final conclusion

Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

This thesis aims to examine the application of the ne bis in idem principle in the European Union, specifically in situations where a sentence has not been enforced. The focus is on the legal status of the principle in EU law and its implications for both the Schengen Convention and the European Arrest Warrant.

• The interpretation of the ne bis in idem principle in the European Union
• The legal status of the principle in EU law, including the relationship between the Charter of Fundamental Rights and the Schengen Convention
• The implications of the principle for the enforcement of sentences in cross-border situations
• The compatibility of the enforcement requirement with fundamental rights principles
• The potential impact of the principle on the European Arrest Warrant

Zusammenfassung der Kapitel (Chapter Summaries)

• Introduction and background This chapter introduces the research question and provides context by exploring the origins of the ne bis in idem principle in EU law. It examines the relevant articles in EU law and analyzes the case of Mr Boere, highlighting the difficulties of applying the principle in a cross-border situation where a sentence has not been enforced.
• Is an enforcement requirement mandatory? This chapter delves into the legal status of the ne bis in idem principle in both Schengen law and the Charter of Fundamental Rights. It examines the relationship between Article 54 of the Schengen Convention and Article 50 of the Charter, exploring whether there is a hierarchy between the two provisions and whether the principle is a fundamental right in EU law. It also considers the broader implications of the principle as a general principle of EU law.
• The implication of this outcome for European Union Law This chapter explores the consequences of the analysis on the application of the ne bis in idem principle for both the Schengen Convention and the European Arrest Warrant. It considers the potential impact of the principle on future enforcement actions in the EU.

Schlüsselwörter (Keywords)

The key terms and concepts explored in this thesis include ne bis in idem, European Union law, enforcement of sentences, fundamental rights, Charter of Fundamental Rights, Schengen Convention, European Arrest Warrant, mutual recognition, proportionality, general principles of law, and cross-border justice.

Frequently Asked Questions

What is the "ne bis in idem" principle?

It is the legal principle that no one shall be held liable or tried twice for the same criminal act.

What is the "enforcement requirement" in Article 54 CISA?

Article 54 of the Schengen Convention requires that if a penalty has been imposed, it must have been enforced, be in the process of being enforced, or can no longer be enforced under the laws of the sentencing state.

Is there a conflict between the Schengen Convention and the EU Charter?

The thesis argues that Article 54 CISA (with its enforcement requirement) may be incompatible with Article 50 of the EU Charter of Fundamental Rights, which does not explicitly mention enforcement.

What happened in the Boere case?

A German court applied the ne bis in idem principle based on Article 54 CISA and concluded that enforcement was an essential element, a decision the author critically reflects upon.

How does this principle affect the European Arrest Warrant?

The interpretation of ne bis in idem has direct consequences for the execution of European Arrest Warrants, potentially preventing or allowing extradition based on whether a prior sentence was enforced.